What is Power of Attorney and should I start thinking about it?

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It's an unsettling thought, but one day your parents or other close elders might not have the mental ability to look after their own affairs.

A common mistake is to assume that just because you're a blood-related family member you're entitled to make decisions on their behalf. This is not the case, so the best way forward is to encourage your loved one to organise Power of Attorney.

This article explains how Power of Attorney works, when it comes into effect and what your responsibilities are.

What is Power of Attorney?

Power of Attorney is a legal document which enables someone to nominate a trusted person – the 'attorney' – to look after their affairs if they're not able to do so themselves.

There are different types of Power of Attorney and it's possible to set up more than one.

Ordinary Power of Attorney

This enables an individual to nominate someone to look after their financial affairs for a temporary period of time, such as during a hospital stay or holiday.

It is only valid while the individual has 'mental capacity' – ie. the ability to make, or communicate, decisions.

Lasting Power of Attorney (LPA)

Covers decisions about financial affairs or health and care over the longer term.

An LPA for financial affairs can involve decisions like buying and selling property, paying bills, and investing money. Your loved one can choose whether it comes into effect while they still have mental capacity, or when they lose capacity.

An LPA for health and care can only be used once your relative loses mental capacity. It can cover decisions like medical care and where your loved one should live.

Enduring Power of Attorney (EPA)

These were replaced by LPAs in October 2007. However, if you signed an Enduring Power of Attorney before this date then it should still be valid to cover decisions about your property and finances if you lose mental capacity, or want somebody else to act on your behalf.

Attorney responsibilities

Before you can start acting as an attorney, you need to have a registered Power of Attonery which has been stamped with “VALIDATED-OPG" by the Office of the Public Guardian.

After you start, you must follow any instructions your loved one has set out; consider any preferences they have made; help them to make their own decisions as much as they can; make decisions in their best interests; and respect their human and civil rights.

You can't ask someone else to make these decisions for you, so it's a good idea to speak to your loved one in advance about their plans and preferences.

Planning ahead

Although it's a difficult subject to bring up, it is better that your relative organises their affairs while they can still make decisions and understand what they're doing. It might be worth explaining to your loved one that the purpose of an LPA is to protect their assets and ensure tasks are carried out as they would have wished.

Planning ahead is also important because an LPA can only be set up before your relative loses mental capacity. Otherwise, you'll have to apply through court to become a 'deputy', which can be a long, costly and intrusive process.

It's extremely important that the document is set up correctly so that no complications arise when it is needed. It might be wise for your relative to seek professional advice.

What next?

Power of Attorney can be difficult to discuss, especially if your loved one is defensive and doesn't understand that the purpose of it is to protect them.

There are lots of online resources that can help you to explain why you feel Power of Attorney is in your relative's best interests:

Power of Attorney – Age UK: https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/

Lasting Power of Attorney – MoneySavingExpert: https://www.moneysavingexpert.com/family/power-of-attorney

Costs and guidance – UK Care Guide: https://ukcareguide.co.uk/power-of-attorney-costs/

Acting as an attorney – Gov.uk: https://www.gov.uk/lasting-power-attorney-duties/start-using-power