A basic guide to powers of attorney

There may come a time when you or your parents might not be able to make financial decisions due to ill health or mental incapacity.   Putting in place a power of attorney gives someone the legal right to make decisions for you or act on your behalf, and can help ensure your affairs are managed.

If you are thinking about granting a power of attorney, berg solicitors in Manchester has provided this guide to help you understand the basics.

Types of Powers of Attorney

There are three types of powers of attorney that may be given by a donor: ordinary; enduring and lasting.

Ordinary powers

These can be more flexible than enduring or lasting powers of attorney and may be limited or general in their scope.

Ordinary powers are governed by the Powers of Attorney Act 1971, but that piece of legislation does not deal with the question of capacity of the attorney.

In the unfortunate event that the donor loses their mental capacity, enduring powers and lasting powers should be used as these specifically provide for the continuation of the power in this situation.

Enduring powers

You may have seen or read about enduring powers of attorney and they still exist, but they can no longer be created. That has been the position since 1 October 2007.

In the situation where a power of attorney is sought for when an individual loses the ability to make decisions for himself/herself, a lasting power of attorney should be now used.

Lasting powers

As well as enabling an individual to act and make decisions in respect of a person’s property and affairs, a lasting power of attorney may also be used to authorise decisions that are to be made about the donor’s personal welfare, including their healthcare.

Having such control is a great responsibility and the Office of the Public Guardian keeps a register of the enduring powers and lasting powers. Indeed, if a lasting power of attorney is now created, they must be registered with the Office of the Public Guardian before they can be used.

FAQs

Here are some FAQs on lasting powers of attorneys (in the health and welfare context):

1. Who can make a lasting power of attorney?

Anyone over 18.

2. Who can be an attorney?

Anyone over 18 (who the donor trusts will act in their best interests).

More than one person can be appointed, but thought should be given to whether they are to act jointly, independently, or both.

3. What decisions can an attorney make?

Consenting, or refusing consent, to medical treatment.

Where the donor should live and who they should live with.

Complaining about the donor’s care or treatment.

Day-to-day care, such as what the donor should eat and wear.

4. Can an attorney decide whether the donor’s life should be sustained? i.e. the decision whether a donor should have an organ transplant, whether antibiotics should be continued etc., or whether treatment should be withdrawn

Yes – if the lasting power of attorney specifically provides for this.

If not specifically provided for, a healthcare professional will make these decisions instead.

5. Is there anything an attorney cannot do?

Yes – these are governed by statute and include:

• consenting to marriage or divorce (or a civil partnership or its dissolution);
• consenting to a child’s adoption; and
• voting in an election or referendum.

6. Should a donor tell people about their lasting power of attorney?

If they wish, the lasting power of attorney can ensure certain people are notified of the registration of the power, but such persons (max. 5) must be named.

When can an attorney start making decisions on a donor’s behalf?

Once the lasting power of attorney is registered with the Office of the Public Guardian and the donor has lost mental capacity.

Risks?

The main risk to delaying putting in place a power of attorney is that the power of attorney will never get put in place.

If it is left too long and the donor loses mental capacity, it will be impossible to register a lasting power of attorney with the Office of the Public Guardian.

We hope this blog provides some guidance on what a power of attorney is and what they can do.If you need assistance with a power of attorney, further information can be found on the Gov.uk website.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice.  No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees.  Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.