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What is a power of attorney?

Where an individual requires care, and is able to give their consent, it may be advisable for a member, or members of their family to be granted a power of attorney. This gives them the power to act legally on their relative’s behalf for financial and property matters, plus decisions on welfare and medical treatment. Although not mandatory it is advisable to establish a lasting power of attorney through a solicitor.

A power of attorney enables someone else to manage your affairs on your behalf when you are no longer able to or no longer want to. There are various types of powers of attorney including Property and Financial Affairs Power of Attorney, Heath & Welfare Lasting Power of Attorney (LPA), Enduring Power of Attorney (EPA) and Ordinary Power of Attorney (OPA).

Whilst one of us likes to think of a time when we can no longer manage our own financial or health affairs, it is reassuring to know that there are procedures in place which should help someone else to do it for us.

An LPA is a legal document which allows you to choose someone to make decisions for you when you no longer want to or are no longer able to. LPA replaced the previous system of Enduring Power of Attorney (EPA) in 2007, and gives your representative the right to manage your affairs and make decisions on your behalf. There are two types of LPA – one for Property and Financial Affairs and for Health and Welfare.

Property and Financial Affairs Power of Attorney

With a Property and Financial Affairs LPA you can decide to give your representative (known as your ‘attorney’) the power to make decisions about any or all of your affairs. An LPA gives your attorney the right to make decisions as if they were you, but they must also make sure they act in your best interests.

Your attorney can’t act on your behalf until the LPA is registered with the Office of the Public Guardian (OPG) in England and Wales, the body responsible for registering LPAs and EPAs, maintaining the Register of registered instruments and dealing with complaints about the conduct of attorneys. The Scottish equivalent is Continuing Power of Attorney, while the Office of Care and Protection deals with Enduring Power of Attorney in Northern Ireland, where LPA has not been introduced.

Health and Welfare Lasting Power or Attorney

A Health and Welfare LPA allows you to choose someone to make decisions about your health and personal welfare should you no longer be able to do so. You can decide to give your attorney the power to make decisions about any or all of your health and welfare matters, but your appointed attorney or attorneys will only be able to make these decisions once the LPA is registered with the OPG, and provided that you can no longer make these decisions yourself.

When to set up an Lasting Power of Attorney

Anyone aged 18 or over can make an LPA appointing one or more attorneys to act on their behalf. It is important to make the LPA while you are still capable of making decisions about who to appoint as your attorneys and what powers you want to give them. The LPA cannot be used until it is registered with the OPG, which you can do at any point after it has been made. Even after it has been registered, your attorneys will have to act within any restrictions or conditions you have set out in the LPA form.

Enduring Power of Attorney

Although LPA replaced Enduring Power of Attorney (EPA) in 2007, EPAs that were made before 1 October 2007 can still be used. EPAs must be registered with the OPG if the donor is losing mental capacity. EPA only covers property and finances.

Ordinary Power of Attorney

A third type of PoA is known as Ordinary Power of Attorney (General PoA in Scotland). This option only covers property and finances and ceases if the donor loses mental capacity. Ordinary PoA never needs to be registered with the authorities.