We recommend that everyone has a power of attorney in place. It will ensure that your affairs can be managed in the event you do not have capacity to do so. Here we set out the main considerations for anyone making a power of attorney.

What is a power of attorney?

It enables you to appoint the people you trust to look after your affairs if you lose the capacity to do so yourself.

There are different types of power of attorney:

• Ordinary power of attorney – for decisions relating to financial matters, only if you still have mental capacity
• Enduring power of attorney – for decisions relating to financial matters
• Lasting power of attorney – for decisions regarding property and financial affairs, and health and welfare

What are the two types of lasting power of attorney and how do they work?

Lasting power of attorney for property and financial affairs

This relates to any decision that has a financial impact, ranging from paying small bills to potentially selling your property and investing the proceeds. Once registered, the document can be used by your attorneys should you lose capacity. It will enable them to carry out your wishes and access your finances as needed in your best interests.

Lasting power of attorney for health and welfare

This relates to any medical decision, ranging from a particular course of treatment up to the life and death decisions that may have to be made. When dealing with a decision relating to treatment that could mean life or death, the form specifically requires your consent to establish whether you are happy for your attorneys to make these types of decisions.

Is my existing enduring power of attorney sufficient and how is it different to a lasting power of attorney?

If you have an enduring power of attorney made some years ago, this is still valid. However, enduring powers of attorney still need to be registered with the Court of Protection to be used. Unlike lasting powers of attorney, they can only be registered once you lose capacity.

Further, enduring powers of attorney only relate to financial matters and would not cover medical decisions. We therefore recommend anyone with an enduring power of attorney to review the document to ensure it still meets their needs.

Who can I appoint and how many attorneys can I have?

The most important decision when making a power of attorney is who you appoint. It is essential that you trust them implicitly to follow your wishes and make decisions in your best interests.

You can appoint up to four attorneys and they can act either together, or both together and separately. Should you appoint more than one person, it is practical to consider whether your attorneys will be able to work well together. Alternatively if you appoint one attorney, then you name replacement attorneys to act as a ‘back up’. This is in case anything happens to the first person you have appointed.

Why is it so important that I have a power of attorney – won’t my family be able to do it anyway?

If you don’t have a power of attorney, your family are not automatically entitled to make decisions on your behalf. They have no legal authority to manage your finances to pay your bills and cannot speak to the doctor to make decisions about your care. The only way they can do this, is to be formally appointed as your attorney.

What happens if I don’t have a power of attorney?

If you lose capacity, people can only make decisions on your behalf if they have a Deputyship Order. This means they must make a formal application to the Court of Protection to be appointed. This process can take approximately one year and is stressful and costly to your family members.

How long does it take to make a power of attorney?

The completion of the forms can be completed in a matter of weeks. However, the document must be registered with the Court of Protection before it can be used. This process can take approximately 12 weeks.

Do I need to update my power of attorney?

We recommend you review your power of attorney every five years or whenever a major event occurs in your life to check whether the document is still appropriate or requires revision.

When does a power of attorney start?

The document is legally valid once signed by you. However, it then needs to be signed by your attorneys and registered before the document can be used.

How long does a power of attorney last?

The document remains valid and usable until you revoke it or you pass away.

Can I cancel my power of attorney?

It is possible to revoke your power of attorney at any time provided you have capacity to do so.

Can a power of attorney change a will?

No, a power of attorney cannot change a will.

What is a power of attorney for business?

If you have an interest in a business, then a power of attorney can be used to enable your attorneys to manage your business affairs whilst you do not have the capacity to do so.

Do I need a solicitor to create a power of attorney?

We recommend you instruct a solicitor to prepare a power of attorney for you. Whilst you are able to do it independently, it is possible to make errors in drafting the document that substantially limit its effectiveness or even render it useless in some situations. This isn’t usually discovered until it’s too late and you have already lost capacity, meaning it cannot be fixed. Instead, your family member may have to then go through the gruelling deputyship process mentioned above.

How can we help?

Our Private Client Team is here to support our clients during these challenging times and recommend that everyone has a power of attorney in place.

Contact us and we’ll make sure the right legal advisor gets back to you to discuss your needs and how we can assist for no initial charge.