Power of Attorney: Don't Leave it Too Late

If you are involved in the care of an elderly parent or relative, a Power of Attorney can give you authority to act on their behalf if they lose the ability to make their own decisions. This overview will brief you on what you need to know - and what you might need to do, before it's too late

There are some things that are good to have in place just in case you need them: say, contents insurance or a passport, or how about enough phone charge on a night-out, or a chilled bottle of champagne in case of urgent need to celebrate good news. Feel free to ponder your own must-have list - but in the case of elderly parents or relatives, one thing that's worth adding to your list is a Power of Attorney.

What is a Power of Attorney?

Power of Attorney is the power given to someone to act as decision maker (as the 'attorney') on behalf of someone else (the 'donor') as, if or when they become unable to make decisions for themselves. It can be an awkward subject to broach or even think about, but the main reason for planning ahead is because a Power of Attorney can only be created whilst someone still has their mental capacity. Once they have lost it, perhaps through dementia, it's too late. If the relevant forms have not been completed, it may mean a lengthy and expensive trip to the court to get the authority to act on their behalf.

Different Types - and Different Laws

Below, we take a look at the what, whys and hows, but do note that there are differences in how Power of Attorney works both within different countries within the UK as well as in the Republic of Ireland, so do see the separate links for further advice as required.

In England and Wales, this is called a Lasting Power of Attorney (LPA), and there are two types: one covering personal welfare and one covering property and financial affairs. With a personal welfare LPA an attorney can make decisions about daily routines (washing, dressing, eating), medical care, as well as over moving into a care home and any life-sustaining medical treatment. It can only be used where the donor is deemed unable to make their own decisions.

The property and financial LPA enables the attorney to make decisions on money and property, including managing bank and building society accounts, bills, pensions and benefits, and even selling the donor's home. These two types came into force from October 2007, but the previous type - an Enduring Power of Attorney, only dealing with property and financial affairs - can still be used if it has not been cancelled. Note that whilst it can be used without being registered, it must be registered as soon as the donor starts to lose capacity.

  • In Scotland, a Power of Attorney can cover any or all of these matters, and the document will list the powers that the appointed attorney(s) have been given, and when they may begin to act.
  • In Northern Ireland - and also the Republic of Ireland - the relevant documents are an Ordinary Power of Attorney and an Enduring Power of Attorney. The two forms have the same status, however, an Ordinary Power of Attorney ends as soon as the donor becomes incapacitated, whereas the Enduring Power of Attorney can remain effective if specified to do so (for Northern Ireland) and only comes into effect upon the incapacity of the donor (Republic of Ireland).

Who can be an Attorney?

Anyone 18 or over who has mental capacity to make their own decisions (over sixteen in Scotland). No legal experience is necessary and it can be a relative or a friend or a professional such as a solicitor or accountant. Ideally it's someone who is well known and trusted to the donor, who is appropriate in terms of how well they look after their own affairs, and is happy to make important decisions. A donor can appoint more than one attorney but will need to decide the extent to which they can act separately or must act together, and on what type of decisions.

Making LPA

It can be done online or using paper forms, but after being signed and witnessed it must be registered with the Office of the Public Guardian in England and Wales, or the Office of Care and Protection in Northern Ireland, as without this no attorney decisions can be made.

Making Decisions

As and when decisions need to be made, the attorney must follow any instructions- and consider any preferences- in the LPA. They should also help the donor to make their own decisions as much as they can, act in the donor’s best interest sand respect their human and civil rights.

A donor can get help with difficult decisions but ultimately make-and not delegate- their decision-making. If there is more than one attorney, then it must be checked whether the decision in question is one that can be made ‘severally’ (on one’s own, or together) or ‘jointly’ (only by agreeing together).

Next Steps

This is just a brief overview. Now you know a little more about power of attorney, you may decide there is no need for any next steps right now, but bear these factors in mind:

  • Be aware of your relatives' state of mind and capacity to function
  • Being ready to raise the issue in future may be enough for now but think about how to start the conversation before it's too late
  • Remember any Power of Attorney must be created before incapacity kicks in
  • It's important to register the Power of Attorney
  • It's not just something for the elderly - any adult can do it and give legal authority to another person or others to act for them in case of need
  • It's not just for those with lots of money or property, since the health and welfare side to Power of Attorney will let you plan who makes decisions for you or your loved ones over crucial personal issues.