A Power of Attorney is a bit like holiday insurance. It seems like an unnecessary expense at the time, and you hope that you will never need it, but when you do you are glad you have it! You hope that you never end up in a position where you lose the capacity to make decisions for yourself, but in the event that you do, your Power of Attorney is your way of retaining a degree of control over your future. You will have already formally decided who you trust to make decisions on your behalf in a time of need, and what restrictions their powers should have.
One of the most common regrets that we hear from clients and their families alike is that they did not start planning for their care needs sooner. So often we work with families who have not put in place any Power of Attorney arrangements. This is often because families don’t like talking about the ‘what if’s’ of elderly care arrangements, facing their or a loved one’s vulnerability and mortality, or thinking that they are old enough to give this matter consideration.
A Power of Attorney is not just for old people. We would encourage clients and their family members of all ages to think about what they would like to happen if the unthinkable happened. Putting a Power of Attorney in place means that if anything should happen there is clarity amongst friends and family on how you would like your affairs to be managed. You will have peace of mind knowing that the person you would trust most to look after you is in fact the person with the legal power to do so.
What is a Power of Attorney?
A Power of Attorney is a written document appointing and authorising a person of your choice to take actions or make decisions on your behalf in the event that you become incapable of doing things for yourself. The Power of Attorney can be restricted to financial matters only, this is known as a “Continuing Power of Attorney”, or can bestow powers to deal with welfare matters only – a “Welfare Power of attorney”. The third option can incorporate both in the one document and is referred to as a “Continuing and Welfare Power ofAttorney”. You can separate out the powers so that a particular person can only deal with your finances, while another looks after your welfare, or you can vest all powers in one (or more) Attorney. Your Attorney does not need to be a family member.
Who Can Grant a Power of Attorney?
Anyone over the age of 16, but there are restrictions if you have been made bankrupt. If relevant, this is something you should discuss with your own solicitor.
What Does ‘Incapable’ Mean?
Incapacity is generally regarded as when you are either physically or mentally incapable of understanding and dealing with your own affairs. Your capacity could be impaired gradually as a result of old age or a progressive illness, or suddenly as a result of an accident or sudden onset of illness. A registered and licensed medical doctor will be able to say whether you are incapable or not. Read more on how to spot signs of decline in an elderly loved one.
What Would Happen if I Don’t Have a Power of Attorney?
No one has an automatic right to take actions on your behalf without the appropriate legal authority, therefore if you do not have a Power of Attorney and are unable to make decisions about your affairs, your family or friends may have to go to court to get the authority to act on your behalf, under what is known as Guardianship provisions. At this stage, you would have already lost capacity, and you would not have any say in who is appointed as your guardian.
Is a Power of Attorney Just for Older People?
Accidents or illness can happen to anyone, so while Power of Attorney is generally regarded as an “old people” thing, it is a sensible planning tool for people of any age, particularly if there are hereditary medical conditions that may be a factor.
Is a Power of Attorney Only Necessary for the Wealthy?
No. While there is an initial cost to set up a Power of Attorney, it’s purpose is not just about looking after your money/property, but safeguarding your welfare in accordance with how you would like to be treated. In fact it is a very effective tool in ensuring people with less money have an advocate for them in dealing with social work provided care.
Who Can I Appoint as my Attorney?
You can appoint anyone you want, so long as they are willing to take on this responsibility, are over the age of 16 and not currently declared bankrupt. This could be a family member or a friend, a solicitor or accountant, or a combination. For practicality’s sake, it is usually a good idea to have more than one attorney or maybe what is called a substitute attorney to step in if your original attorney can no longer do things for you. You can appoint someone to deal with your financial matters and someone different to deal with your personal welfare. It is good practice to discuss with the person you want to be your attorney what being an attorney actually involves. It will be helpful if you keep a note of the matters discussed and give your prospective attorney a copy too.
Where or How to Get Power of Attorney?
While some stationery stores sell Power of Attorney packs, we would not usually recommend these. Any local solicitor should be able to assist you to draft a Power of Attorney, provide legal advice on the matter and any other relevant advice, such as wills and tax planning.
How Much Does Power of Attorney Cost?
Solicitors will of course charge you for their services in drafting the Power of Attorney and these fees will often vary from firm to firm, depending on how complex you wish your document to be. In order to be registered with the Office of the Public Guardian, the Power of Attorney document must include a certificate signed by a practising solicitor or medical doctor which confirms that you are capable of understanding the consequences of signing the Power of Attorney. Even if you do decide to use a pack or have a go at writing it yourself, you might be charged a fee for this service.
What Happens to my Power of Attorney Once I Have Signed it?
The Power of Attorney must be registered with the Office of the Public Guardian before it can be used, even if you are still capable of doing things for yourself. It is to be accompanied by an application form which contains a statement that your appointed Attorney(s) are willing to act on your behalf if and when required. There is also a registration fee payable. More details on the submission of the Power of Attorney for registration and the current fees can be found on the Public Guardian’s website. Once the Power of Attorney has been registered, your documentation and an authenticated copy of the Power of Attorney, along with a certificate will be returned to you (and to the sender if sent by a solicitor).
Can my Attorney use my Power of Attorney Before I Become Incapable?
Yes, they can help you with your finances if you wish but they cannot make decisions about your welfare until you are no longer able to make those decisions for yourself.
Are There Checks in Place to Ensure an Attorney Does Not Abuse Their Powers?
Yes. Guidance as to what is required and expected of Attorneys is provided in the Code of Practice which is available on the Public Guardian’s website. If a person suspects an Attorney is not fulfilling their duties properly, they can request that the Public Guardian investigates the matter.
Can I Cancel the Power of Attorney Once it is Registered?
So long as you have capacity, you can amend or cancel the Power of Attorney at any time. You should contact your solicitor or the Public Guardian’s office for further information if you wish to do this.
Where Can I Get Further Help or Information?
Your local Citizens Advice Bureau or solicitor will be able to help with issues involving Powers of Attorney. There is also lots of useful information available to you on the Public Guardian’s website.