14 August 2020
What is a Power of Attorney?
A power of attorney (POA) is a legal document by which you can appoint a person (or persons) you trust to act on your behalf when you are unable to deal with things yourself.
The most common kind of POA is a lasting power of attorney (LPA). There are two different types: property and finances and health and welfare.
You can no longer make enduring powers of attorney (EPAs), but if you made one previously you can still register it. These are used to appoint an Attorney to help you with your property and finances only.
You can make general powers of attorney (GPOA) to appoint someone to carry out a specific task for you, or assist you temporarily. These types of POA are usually re-newed every 12 months.
It is important to think carefully about whom you would like to appoint.
The rules for acting as an attorney
The Mental Capacity Act 2005 made it very clear that attorneys are not free to do whatever they wish once they are appointed and the LPA has been registered. They must act in accordance with five principles:
An attorney is not permitted to do anything which is not in accordance with these rules.
How many attorneys should I appoint?
You should consider appointing at least two people. You can appoint two (or more) attorneys to work together. You can also appoint one (or more) attorneys in the first instance, with one (or more) replacement attorneys too. This means that there should always be at least one person to assist you.
Bear in mind that if your only attorney is your spouse or partner; they might begin to require assistance around the same time as you. So it is sensible to plan ahead and perhaps appoint someone younger as a co-attorney or a replacement attorney.
Your attorney could unexpectedly become seriously unwell or even predecease you in which case you will have no-one to act on your behalf. You might be able to make a new LPA at that time. However, if you no longer have “sufficient mental capacity” then you will be prevented from choosing a new attorney and will have to apply to have a court appointed deputy instead.
You may wish to appoint a team of attorneys and replacement attorneys. The co-attorneys will be able to help and support each other and share the responsibility. You can choose up to four of each type.
Your attorneys may have different skills and abilities. For example, your granddaughter might be able to help you pay your income tax, your son may be able to take you to hospital appointments and your neighbour might help you do your weekly shopping.
Consider the logistics
It is sensible to appoint someone who lives relatively locally to you. There are practical problems in appointing someone who lives on the other side of the planet as your sole attorney.
Choose someone you trust
It goes without saying that your attorney should be trustworthy and honest. You shouldn’t appoint someone as your attorney is you don’t trust them with your money or to act in your best interest.
Choose someone who is good with paperwork
It is helpful to appoint someone who is organised and can help you with technical matters.
Choose someone who has time to help and is reliable
Sometimes people are simply too busy to assist you. People who have lots of responsibilities already may struggle to help you as much as you would like or be able to help at times of crisis. This type of person may make a suitable replacement attorney or an attorney in the first instance alongside a co-attorney who has more time to help.
If you would like more information about making a power of attorney please call one of our trusted and experienced solicitors based at our Bournemouth and Christchurch offices.
Please note, this is not legal advice. It is intended to provide information of general interest about current legal issues.
