What You Need to Know About Power of Attorney
In a nutshell, a power of attorney for elderly parents is a means of lightening their load and anxiety. It can also help you feel less anxious about their vulnerability. However, given that we all understandably want to fervently guard our independence, knowing when you should be setting up power of attorney can be a difficult decision. This is a comprehensive guide to organising a power of attorney for an elderly parent, including the different types and how to do it.
What is a Power of Attorney?
As we advance in to older age, there will likely come a time when we’re not able, physically or mentally, to reliably make appropriate decisions. Being realistic about this, in advance, means that you will have the power to choose someone you trust to manage decisions regarding your wellbeing and your finances.
This is the premise of a ‘Power of Attorney’. In short, it’s a legal agreement giving your chosen representative the ability to act on your behalf. This is not an automatic process. Do not assume that your closest relative will be able to act on your behalf without a legal Power of Attorney.
When you start looking in to this in more detail it is easy to become overwhelmed by legal jargon. It can be useful to understand the main legal terms and different types of Power of Attorney.
Power of Attorney – Jargon Busting
In England and Wales, the full term used for ongoing Power of Attorney is ‘Lasting Power of Attorney’ frequently shortened to LPA. Terminology and legal processes are different outside of England and Wales. For the purposes of this guide, we are referring the system within England and Wales.
It is also possible to get a short term Power of Attorney, for example if you will be incapacitated for a period of time whilst in hospital. This is known as an Ordinary Power of Attorney.
There are two types of LPA:
- Property and Financial Affairs Lasting Power of Attorney.
- Health and Welfare Lasting Power of Attorney.
It is recommended that you arrange both types at the same time so that your future wellbeing, both practical and financial, is safeguarded. However, they are separate applications and as such carry their own fees.
Property and Financial LPA: This enables your chosen representative to make decisions regarding your finances and how your assets and money are managed. It may cover things such as paying bills, managing (and selling) property, undertaking investments and organising property repairs and maintenance. At the setting up stage you get to decide which decisions can be made. Your chosen attorney is required to keep your money completely separate from their own, and keep accounts.
Health and Welfare LPA: This enables your chosen representatives to make decisions regarding your health and welfare, most notably any medical treatment and your living arrangements. The attorney will be able to give or refuse consent on your behalf, including for life-saving treatment if you wish.
You may also see reference to the term ‘Enduring Power of Attorney’ or EPA. These have been replaced by LPAs since October 2007. They are still valid if they were registered before then.
What Happens Without a Power of Attorney?
In the event that you become either mentally or physically incapacitated without a Power of Attorney, then you will be registered with the Court of Protection. They will assign a ‘deputy’ who is vested with the power to make both financial and welfare decisions on your behalf. This includes decisions such as medical treatment and sale of property. Family can apply to the Court to themselves become a deputy but this is a lengthy process, and doesn’t afford the full strength of a LPA.
Who Should Be Your Power of Attorney?
You may be confident about who you wish to be your attorney. They must fit the following criteria:
- Over 18 years of age.
- Have good mental health.
- For Property and Financial LPA’s they must neither be bankrupt nor subject to a Debt Relief Order.
Often adult children take on the role of attorney. It is possible to have more than one LPA whereby they take decisions jointly. Indeed it can often be a sensible option. You can specify whether certain decisions require unanimous joint consent, or can be taken independently by one individual.
If you jointly own property with a spouse or partner, they cannot be granted LPA powers which would enable them to transfer ownership of your share in the property.
Setting-Up Power of Attorney: How to Arrange It
You’ll need to go through the following process when setting up power of attorney for an elderly parent, or for arranging your own LPA. The process usually takes between 8 and 10 weeks:
- Act yourself or engage a solicitor:
It is possible to organise a LPA yourself by using the guidance and forms available from the Office of Public Guardian (OPG). Nonetheless, it’s important to remember that this becomes a binding legal agreement so you may wish to engage a solicitor.
- Nominate your attorneys:
Check your chosen individual/s against the criteria above. Remember that they may need to fulfil this role for many years. Furthermore, you can also nominate substitutes in the event that your chosen attorney is no longer capable of acting for you at some point in the future.
- Complete the paperwork:
Using the forms from the OPG, complete the LPA. Within the forms you can specify any conditions or restrictions you wish to apply. Remember that separate forms must be completed for the two types of LPA. These forms can be printed, or completed online. Once completed, the forms will need to be signed and sent off.
- Certification:
To validate the LPA, it must be certified by an impartial adult (who has known you for a minimum of 2 years) or a relevant professional (e.g. a solicitor). Their role is to confirm that you fully understand the LPA and that you are not acting against your own will.
- Registration:
At this point the LPA specifies up to five other people who will be notified of the LPA. They have three weeks in which to raise any concerns they may have.
- LPA comes in to effect:
To register the LPA and enable it to become legally binding, it needs to be registered with the OPG. You can find details of the fees, as well as your eligibility for any fee reductions, here.
Can You Make Changes to a Power of Attorney?
Yes. Whilst you still have mental capacity, you can make changes to an LPA even once it’s been registered. You also have the right to make a complaint about your attorney/s to the OPG if you are concerned that they are not acting appropriately. The OPG can investigate your concerns including investigating reports of fraud.
Seeking assistance from a family solicitor, or the Citizens Advice Bureau, can help you feel confident regarding the Power of Attorney process. When arranged appropriately, a LPA can provide reassurance that your interests are protected.