When To Consider Applying for Power of Attorney For Your Parents

Setting up a power of attorney is as important as having a pension, a will, or any other later-in-life mechanism. Like a will, a power of attorney could be needed at any time so it can be helpful to have the conversation early on if you are a parents next of kin. 

If you’re unsure as to what it is, and want power of attorney explained in simple terms, this article should come in handy. Put simply, it’s the act of appointing someone to make decisions on your behalf if you ever ‘lack the mental capacity’ to do so yourself.

In this post, we’re going to give you the full picture of what a power of attorney is, what the different types are, and how your relative can appoint you to be one. 

What is a Power of Attorney?

Before we break down the different types and tell you how a power of attorney can be appointed, we’re going to tell you what it is. This is a legal document that gives a named person the power to make decisions on another person's behalf if they are no longer able to do so. There are several reasons why you might need to act on someone's behalf:

• A temporary situation: where they are in hospital and need help with the tasks they’d usually perform, for example if they’re in a coma.
• A long-term situation: where they’ve been diagnosed with dementia or a terminal illness and could lose the mental capacity to make their own decisions.

What is Mental Capacity?

Just so we’re clear on what ‘lacking mental capacity’ actually means, mental capacity is the ability to make or communicate specific decisions at the time they need to be made. You also need to be able to understand the decision, why you need to make it, and the outcome.

Sometimes people have the mental capacity to make some decisions and not others. So, you’d only need the power of attorney for the decisions they aren’t able to make.

How Many Attorneys Can Be Appointed?

It is possible to set up multiple attorneys and even divide up what responsibilities they have, this can be helpful if you have siblings or others who will be involved in your parent's care too. These attorneys can act:

• Jointly: where you have to make all the decisions together.
• Jointly and severally: where you make some decisions together and some separately.

For example, attorneys can be appointed to act jointly on their medical care, yet a single attorney appointed to look after their finances.

What Are the Different Types of Power of Attorney?

Now that we know what a power of attorney is, when they are usually evoked and how many can be appointed, it’s time to look at the different types you can choose from. There are three main types of power of attorney:

Ordinary Power of Attorney

An ordinary power of attorney is only valid when someone has mental capacity. It covers decisions about financial affairs and is suitable if they need cover for a temporary period or if they just want someone to act for them.

One or more attorneys to act for someone if:

• They need someone to act on their behalf for a temporary period, such as when they are on a long holiday or in hospital.
• They are having a hard time getting to and from the bank or post office and want someone to deal with it for them.
• They would rather have someone do the financial work for them so they can play a supervisory role instead. Some people might choose this after the death of their partner if they weren't previously responsible for the household finances.

They don’t need to give full power to you as attorney and can decide what assets you have access to, such as their bank but not your home. 

It’s important to note that ordinary powers are only valid whilst they still have all their mental faculties. So if they are getting to the stage where you are worried about dementia or their general mental capacity, it’s probably time to make arrangements for a lasting power of attorney.

Lasting Power of Attorney (LPA)

A lasting power of attorney can cover financial affairs or health and care. Once a person has lost their mental capacity, LPA comes into effect, so it’s a good idea to set one up before that happens to make sure they’re covered for the future. 

If you’re setting up an LPA for financial decisions, you can use it whilst they still have mental capacity, or they can stipulate that it only come into effect once they are struggling mentally. It can be used for such things as:

• Buying and selling property
• Investing money
• Arranging repairs to their property
• Paying the mortgage
• Paying their bills

If you’re setting up an LPA for health and care decisions, it can only be used once they’ve lost mental capacity. An attorney can make decisions about various things, such as:

• Where they should live (including whether they should move to a nursing home)
• What they should eat
• What kind of social activities they should be part of
• Their medical care
• Who they should have contact with

Enduring Power of Attorney (EPA)

An EPA covers decisions about your property and finances, and comes into effect either when you lose mental capacity or if you want someone to act on your behalf before then. Enduring power of attorney was replaced by lasting power of attorney in October 2007. However, if you signed one before that date it’s still valid. 

How Do You Set Up a Power of Attorney?

At this stage, you know what a power of attorney is and what types you can choose from. Now, all you need to do is set one up…

Setting Up an Ordinary Power of Attorney

Some one is more likely to set up an ordinary power of attorney when they have specific tasks in mind that they can no longer do themselves or they don’t want to do themself. To set one up they could speak to their local Citizen’s advice or get advice from a solicitor. They’ll use a form of wording that is standard across this type of power of attorney. 

Setting Up a Lasting Power of Attorney

A lasting power of attorney is more malleable than an ordinary one because you can use the financial side whilst they have mental capacity and the medical care part will be invoked when they become mentally incapacitated. To set one up, follow these steps:

1. Request the relevant forms and information pack from the Office of the Public Guardian, download them or fill them out online.
2. If you want to make sure the forms are filled out correctly, or they have complex provisions to include, you should get a solicitor or local advice agency to help. This can help prevent problems further down the line.
3. Once their forms are filled out, get them signed by a certificate provider to confirm that they understand them and weren’t put under any pressure to sign. The certificate provider must be someone they know well or a professional person, such as a social worker, solicitor or doctor.
4. They now have a lasting power of attorney. However, before it can be used it must be registered with the Office of the Public Guardian. There’s a fee of £82 to register a LPA. If they’re on a low income, they may be able to get a 50 percent discount and, if they’re on certain benefits, you pay nothing.

Note: you or they must register the LPA while they still have mental capacity. There is then a 4 week period where any objections can be raised.  

Cancelling a Power of Attorney

One last thing you need to know is how to cancel a power of attorney. If you’ve suddenly decided this isn’t for you, or your situation has changed for any reason, you can cancel it even if it’s been registered. 

If they are cancelling it they must have the mental capacity to make the decision and tell their attorneys and the Office of the Public Guardian to remove the LPA from the register. There are some situations where power of attorney ends automatically, which are:

• The attorney or donor dies
• The attorney or donor becomes bankrupt
• The attorneys lack the mental capacity to make decisions
• A marriage or civil partnership between the donor and the attorney is dissolved

The Court of Protection can also cancel a power of attorney if an attorney isn’t acting in the best interests of the donor. For example, if they’re making excessive gifts to themselves or others using the donor’s estate, the responsibility can be revoked.

So, Should I Set Up a Power of Attorney?

Throughout this post, we’ve managed to cover what powers of attorney are, the different types, and advised you on how to set one up. It’s not a nice thing to think about, but there’s always a chance your parents will lose their mental capacity unexpectedly so it’s important to have someone they trust be legally in charge of their medical care and financial matters if that happens. 

We hope this answers your questions, and helps you to make an informed decision for your family's future. Thank you for reading this post, and good luck setting up a power of attorney.

***NB This post is not intended  to take the place of legal advice and it is recommended you consult a qualified professional when needed. This is a collaborative post***