Power of Attorney: I have power of attorney… now what?

Once you have power of attorney over someone, you may wonder what this means and how you action it. This article will explain what you can do as someone’s attorney.

Please contact us on 01707 329333 or email law@crane-staples.co.uk for further advice about the content of this article.

You can find out more about Lasting Powers of Attorney (LPAs) here.

If someone has power of attorney, what does that mean?

If you have been appointed as someone’s attorney, this means that the donor has chosen you to act for them if or when they lose the ability to act for themselves.

The donor may have anticipated that they will lose mental capacity, following a medical diagnosis. Otherwise, they may have appointed you to be their attorney just for their own peace of mind.

Losing Capacity

Losing capacity means the donor has sadly lost the ability to understand, remember and weigh up information relating to a decision. They also lack the ability to communicate the decision. You can find out more about establishing capacity here.

Sole Attorney or Joint Attorneys

You may have been appointed as the donor’s sole attorney, or there may be additional attorneys.

If you have been appointed as an attorney together or ‘jointly’ with another person, you will need to make decisions for the donor together.

Alternatively, you may have been appointed with another person separately or ‘jointly and severally’. This means that you can make decisions for the donor independently of each other.

Replacement Attorneys

If you have been appointed as a replacement attorney, you are kept on reserve as a backup in case the original attorneys can no longer act for the donor for any reason.

You can find out more about how your attorneys can act here.

Lasting Power of Attorney – Health and Welfare

If you have been appointed as an attorney for someone’s Health and Welfare, you will be able to make decisions on their behalf about their wellbeing and healthcare. This includes making decisions about their medical care, where they live, and what kind of support they will receive. You may have a say in whether the donor receives life-sustaining treatment.  However, this depends on the donor’s decision when they created the LPA,

You will only be able to begin making decisions for them once the LPA has been registered and the donor has lost mental capacity.

Lasting Power of Attorney – Property and Financial Affairs

If you have been appointed as someone’s attorney for their Property and Financial Affairs, you will be able to make decisions about their finances. This includes managing their bank accounts, paying bills, selling, and mortgaging a home amongst other things.

You can only begin to make decisions for the donor once the LPA has been registered.

However, if the donor has chosen so, you may be able to start making decisions for the donor before they have lost mental capacity.

Can a power of attorney be used immediately?

Before you can act as someone’s attorney, the LPA must first be registered with the Office of the Public Guardian.

Whether the attorneys can act immediately after registration is dependent on the type of power granted, and the permissions and instructions therein.

Property and Financial Affairs

The attorneys can assist the donor with property and financial decisions immediately, if the donor has granted this permission. This will be stated in section 5 of the Property and Financial Affairs LPA.  This means that attorneys can help the donor with property and financial affairs right away, even whilst the donor has capacity.

However, if the donor has not given this permission, the attorneys can only act once the donor has lost capacity.

Health and Welfare

Under a Health and Welfare LPA, attorneys can only act and make these decisions once the donor has lost mental capacity.

Do I have to ‘activate’ my power of attorney?

Once the LPA has been registered, the donor and the attorneys will receive a letter from the OPG with an LPA reference number and an activation key. With this information you may ‘activate’ the LPA online on the government’s website, found here. This is not a requirement but may make it easier to share information about the LPA with other parties. For example, banks or the Department for Work and Pensions.

Otherwise, you will need to share an original or certified copy of the LPA with an institution to prove your position as the donor’s attorney.

How do I prove I have power of attorney over someone?

As an attorney, you will need to provide the LPA as proof of your authority. For instance, you may want to speak with the donor’s doctors or manage their bank accounts. In order to do so, you will need to share the Lasting Power of Attorney with the hospital or the bank so that they can register and identify you as the donor’s attorney.

As mentioned above, the Government have launched an online service to ‘activate’ the LPA to make it easier to share information with other institutions. Otherwise, you will need to show the institution the original LPA or a certified copy of the LPA. They may also ask you for more information about your own identity. So, be prepared to show them proof of your identity and address.

What are the responsibilities of a power of attorney?

If you have power of attorney over someone, this means you have various obligations and responsibilities to them.

It is the responsibility of the attorney to act in the donor’s best interests at all times. Attorneys must act in accordance with the donor’s wishes and preferences. The attorney should consider the donor’s feelings, beliefs and values, when making decisions.

An attorney should always try to help the donor make decisions for themselves where possible. For instance, if the donor has difficulty understanding things at a certain time of the day, the attorney should help the donor to make decisions at a time best suited to them.

As an attorney, you should prepare by discussing with the donor their plans for how they would like their money spent or how they want to be cared for before they become seriously ill or lose mental capacity.

An attorney must only act when it can be shown that the donor no longer has the mental capacity to act for themselves. An attorney should not take it upon themselves solely to decide that the donor has lost capacity. For instance, if the donor makes decisions that the attorney disagrees with, this is still the donor’s choice whilst they have mental capacity. It is advisable to ask the donor’s doctor or another medical professional to help assess capacity.

What are the duties of a power of attorney?

An attorney’s duties differ depending on what type of powers they have. Both types of LPA come with different powers and duties. In many cases, the donor will have made both types of LPA and chosen the same attorneys for both. However, this is not always the case.

Health and Welfare

• Decide where the donor lives, including whether this be a care home or nursing home.
• What kind of medical treatment the donor receives.
• Who the donor has contact with and what kind of social activities the donor partakes in.
• End of life care, including refusing life-sustaining treatment if the LPA allows this.

Property and Financial Affairs

• Managing finances, including opening and closing bank accounts, and managing the donor’s pension.
• Paying bills and writing cheques, this may include arranging healthcare and paying those bills.
• Selling or buying a property, including mortgaging a home.
• Carry out any trade or business.
• Make gifts on the donor’s behalf.

Can a UK power of attorney be used overseas?

In some circumstances, an LPA registered in the UK may be used overseas if it is recognised by the relevant local authorities in the foreign jurisdiction. Even so, they may have their own requirements that you will need to adhere to before the powers may be exercised. The LPA may need to be translated. Many foreign jurisdictions will require an ‘apostille’ to certify the authenticity of the LPA.

How can I end a power of attorney?

A donor can only end a lasting power of attorney whilst they still have mental capacity. To end the LPA, the donor will need to write to the Office of the Public Guardian. They must send them the original LPA and a written statement known as a ‘deed of revocation’. The government have published guidance and the wording of the deed of revocation online, found here.

Please contact us if you require help making a deed of revocation.

Can I remove one of my attorneys?

If the donor has appointed more than one attorney, it is possible to remove one of the attorneys whilst the donor has mental capacity. This is done by sending the Office of the Public Guardian a written statement known as a ‘partial deed of revocation’. The wording can be found on the government’s website, here.

Please contact us if you require help making a partial deed of revocation.

How can I end my power of attorney over someone?

An attorney can choose to stop acting as an attorney at any time, even if the donor has already lost capacity. This is known as ‘disclaiming’ an attorneyship. This is done by sending a notification form to the Office of the Public Guardian if the LPA has been registered. If the LPA has not yet been registered, you will need to send this form to the donor. The form should also be sent to any other appointed attorneys.

Please contact us if you require help disclaiming an attorneyship.

What happens to the donor if I end my power of attorney over them?

If you are someone’s sole attorney and you have decided to stop acting for them, the power of attorney will come to an end. If there are any additional attorneys that are not appointed jointly, they may continue to act as the donor’s attorney without you. However, if you are appointed jointly with another person and one of you chooses to stop acting, the other will need to stop acting too.

If the donor is left without an attorney but still has mental capacity, they will be able to reapply to the Office of the Public Guardian for new LPA. However, if they have lost mental capacity, they will be unable to do so.

Replacement Attorneys

The donor may have listed Replacement Attorneys in their LPA. These replacement attorneys will step in if the original attorneys can no longer act.

Deputyship

If you know of someone who has already lost mental capacity, that does not have any attorneys, you can apply to the Court of Protection to become their property and financial affairs deputy or their personal welfare deputy so that you can make decisions for that person.

The responsibilities and duties of a deputy are similar but not identical to those of an attorney. As a deputy, you will receive a court order from the Court of Protection which says what you can and cannot do. The Office of the Public Guardian will supervise an appointed deputy as well as provide advice and support. A deputy will also need to submit an annual deputy report of the decisions they have made to the Court of Protection. The UK government has published an overview and more detailed guidance on deputyship here.

When must you stop acting as an attorney?

There are some instances where you must stop acting as an attorney:-

• If you lose mental capacity.
• The donor has revoked your attorneyship.
• You are a Property and Financial Affairs attorney and you become bankrupt (or subject to a debt relief order).
• You were married to the donor but have since divorced them.
• You are appointed as a joint attorney and the other joint attorney stops acting (unless the LPA says you can carry on making decisions).
• It has been proven that you have abused your powers as an attorney.

A Lasting Power of Attorney will also be cancelled if a sole attorney dies, or if one of the attorneys who was acting jointly dies, before the donor. If there is more than one attorney acting jointly and severally, the other attorney can continue to act if one of the attorneys dies.

What to do if you suspect a power of attorney abuse?

The Office of the Public Guardian (OPG) are responsible for maintaining the register of attorneys. If you suspect an attorney is abusing their position, the OPG can investigate any allegations of abuse and will report to the police or social services if they deem it necessary.  You can make a report to the OPG here.

If you do have concerns that an attorney is abusing their position, you should contact the local authority’s safeguarding team. If you believe that someone is in immediate danger, speak to the police.

You may wish to contact us for initial advice if you have any concerns about possible power of attorney abuse.

Power of Attorney Advice

We are solicitors specialising in LPAs in Welwyn Garden City, Hertfordshire. If you would like our assistance with making an LPA, please contact our Wills, Trusts and Probate team. Please call 01707 329 333 or email law@crane-staples.co.uk. We look forward to hearing from you.