It can be difficult thinking of a time when you are unable to make your own decisions regarding your future, but it is always good to be prepared. Sorting your power of attorney can give you peace of mind should you be facing difficult times.
What is Power of Attorney?
Power of attorney is a legal document which allows someone to make decisions on your behalf if you are no longer able to or no longer want to make decisions yourself. There are several reasons why you may need to assign someone to make decisions on your behalf. It could be a temporary situation such as being in the hospital, or it could be long-term, for example, if you have been diagnosed with dementia or have suffered a stroke.
What is Mental Capacity?
Mental capacity is the ability to make and communicate decisions regarding your wellbeing when required. To have mental capacity, you must be able to understand the decision you are making, why you need to make it and the likeliest outcome of your decision. Assessments are done to test your mental capacity.
The decisions you have to make could concern finances, health and care; you may also find you can make decisions about some things but not others, such as what to buy for dinner, but not sorting home insurance. Additionally, needing time to understand or communicate any decisions does not mean you lack mental capacity. In the event someone has difficulty communicating, attempts can be made to overcome the problems and help the person decide for themselves.
What are the Different Types of Power of Attorney?
There are different types of power of attorney, and you may find that you want to set up more than one. The different types include ordinary, lasting and enduring power of attorney.
An ordinary power of attorney covers decisions about financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period, such as a hospital stay, or if you want someone to act for you.
Lasting power of attorney (LPA) covers decisions regarding financial affairs or your health. It comes into effect if you lose mental capacity, or if you decide you no longer want to make decisions yourself. Setting up a lasting power of attorney ensures you’re covered in the future.
LPAs replaced enduring power of attorneys in October 2007. However, if it was signed before October 1, 2007, it should still be valid. It has the same effect as an LPA.
Isn’t My Life Partner in Charge of Decisions?
If you are married or in a civil partnership, you may assume the spouse would automatically deal with financial matters or making decisions about your healthcare, should you lose the ability to do so yourself. However, this is not the case, and a power of attorney that names your life partner as the decision maker acting on your behalf will need to be set up.
How Do I Set Up a Power of Attorney and What is the Cost?
To set up a power of attorney you should contact your local Citizen’s Advice or get advice from a solicitor. For a lasting power of attorney, you need to contact the Office of Public Guardian to get the relevant forms. Once you have filled out the forms, whether online or on a hard copy, you need the documents signed by a certificate provider. This is someone who confirms you understand it and haven’t been pressured into signing the legal document. The certificate provider must be someone you know well, or a professional person knowledgeable about your situation, such as a doctor, social worker or solicitor.
Before using an LPA, you need to register it before you can use it. In England and Wales, the registration fee is £82 for each LPA, costing £164 in total to register an LPA that covers property and financial affairs, and an LPA for health and care issues. You might be expemt from fee if you have a low income or receive income benefits.
Do I Need a Solicitor?
You do not need a solicitor to create an LPA and application forms from the Office of Public Guardian contain guidance to help you fill them out correctly and you can also phone the office if you have issues. If you want to use a solicitor, you’ll need to pay them to complete the form for you. Fees vary, so you may want to consider contacting a few solicitors to compare the fees and the services they provide.
How Can I Make Changes to My Power of Attorney?
As long as you have mental capacity, you can make changes to your LPA. However, all changes to an existing power of attorney must go through the Office of Public Guardian.
What Can I Do If I am Having Problems with My Power of Attorney?
If you’re unhappy with the decisions that are being taken for you, there are ways you can make a complaint. If it is related to healthcare, your local NHS Complaints Advocacy service can support you. If the concerns are about social care, contact your local social services adult protection team. If you are in immediate danger, contact the police. You can also raise concerns with the Office of Public Guardian, which has a responsibility to monitor power of attorneys and can investigate any allegations that concern mistreatment or fraud. The Office can also report concerns to other agencies such as social services if they believe they have reason.
Why not check out other posts on Wise Old Elephant for legal advice for the elderly?