What is a Power of Attorney?

A Power of Attorney is a legal document where one person (the donor) gives another person or people (the attorney or attorneys) power to deal with matters on their behalf. Powers of Attorney are important because, contrary to common belief, no-one has automatic legal authority to deal with financial matters on behalf of another person, not even the next of kin.

What types of powers of attorney are there?

Before 1 October 2007 if you wanted to appoint somebody to manage your affairs you had two choices – an Ordinary Power of Attorney or an Enduring Power of Attorney.

What is an Ordinary Power of Attorney?

An Ordinary Power of Attorney is usually created for a set period of time in cases where the Donor is going abroad or is unable to act for some other reason (perhaps due to a temporary illness) and wants someone else to have the authority to act on his or her behalf. The authority granted can be general or limited to specific affairs. An Ordinary Power of Attorney usually ends at a specified time or upon the request of the Donor at any time using a Deed of Revocation and will automatically be revoked if the Donor loses mental capacity. There is no requirement for an Ordinary Power of Attorney to be registered with the Office of the Public Guardian.

What is an Enduring Power of Attorney?

An enduring power of attorney is like an Ordinary Power of Attorney with one very important difference, an enduring power of attorney can come into effect or continue in force after you have lost mental capacity. Enduring Power of Attorney documents (EPA's) were replaced by Lasting Power of Attorney documents on 1st October 2007. However, if an Enduring Power of Attorney has already been made, it is still valid and can be registered so long it is registered as as soon as the person concerned is incapable of making decisions for themselves.

What is a Lasting Power of Attorney

Many elderly people may realise that there will come a time when, due to mental decline, they will be unable to manage their property. To deal with this they can appoint a friend, relative or professional to hold a Llasting Power of Attorney that will allow them to act on their behalf an matters such as property and finance (a Property and Affairs LPA), and personal welfare (a Personal Welfare LPA).

Lasting Powers of Attorney (LPAs) were introduced by the Mental Capacity Act 2005 from 1 October 2007. A lasting power of attorney can be drawn up at any time while a person has the mental capactiy to do so, but has no legal standing until it is registered with the Office of the Public Guardian.

How do I register a Power of Attorney

An unregistered LPA will not give the Attorney any legal powers to make a decision for the Donor. The Donor can register the LPA while they have capacity, or the Attorney can apply to register the LPA at any time.

What happens if there is no Power of Attorney in place, but an elderly person becomes incapapble of looking after their own affairs?

If a person becomes incapable of dealing with thier financail and personal matters, and there is no Power of Attorney in place, the carer has to apply for an Order from the Court of Protection. This process can be time consuming and expensive.

What is the Court of Protection?

The Court of Protection was set up to make decisions in relation to the property, affairs, healthcare and personal welfare of adults (and children in a few cases) who lack the mental capacityto do it themselves.

The Court of Protection also has powers to decide whether someone has the capacity to make a particular decision.

The Court of Protection has the powers to:

- decide if a person is able to make a particular decision themselves;

- make decision on financial or welfare matters for people who can't make the decisions themselves;

- appoint deputies to make decisions for people who can't make decisons themselves;

- decide whether an LPA or EPA is valid;

- remove deputies or attorneys who do not carry out their duties correctly;

- hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid.