Setting Up a Power of Attorney

What is a Power of Attorney?
A Lasting Power of Attorney is a legal instrument that allows you to appoint someone to make decisions on your behalf if you lack the capacity to make them yourself at some point in the future. Solicitor Gary Rycroft from Joseph A. Jones & Co Solicitors in Lancaster, says: ‘We all make decisions every day of our lives and while we have capacity we can do that, but if we lose capacity there needs to be a legal structure in place for someone to make decisions for you. The law allows you to make a Lasting Power of Attorney which lets you to name people to make decisions on your behalf.’

There are two types of Lasting Power of Attorney (LPA) as follows:

• Property & Finance – This means that the person or persons you appoint to be your attorney(s) can make decisions on matters such as buying and selling your property, investing money and paying bills. With Property & Finance LPA, you can delegate decisions to be made on your behalf while you still have capacity and you may choose to pass on the responsibility of decisions to your attorney, especially if you are feeling tired or unwell and don’t feel able to carry the burden of making these decisions.

• Health & Welfare – This means that the person or persons you appoint to be your attorney(s) can make decisions about your health and wellbeing including decisions about your medical care and where you live. However, the attorney must implement your wishes, which you will need to have discussed with them previously. ‘Attorneys shouldn’t implement decisions which are in accordance with their own views – they should implement decisions in accordance with what the donor wants,’ says Rycroft. ‘So if you have said you do not want to go into a care home, your Health & Welfare attorney should not overrule that and should do all they can to ensure that you do not go into a care home. Sometimes circumstances dictate that it’s impossible for your wishes to be met – it may come to the point where you cannot be cared for other than in a care home and your attorney would have to reluctantly go along with that but they should be implementing your wishes until the very last and be advocating for you. They should only agree to you go into a care home if it’s been demonstrated that there is no alternative.’

Making decisions
Unlike Property & Finance LPA where you can ask your attorney to make financial decisions for you when you still have capacity, with Health & Welfare LPA, if you have capacity, you must make your own decisions about your health and welfare. ‘The attorney will only be able to make decisions if you have lost capacity and you can’t make your own decisions,’ says Rycroft. ‘Health & Welfare LPA is very much a last resort whereby the patient has lost capacity, the doctors are trying to discuss treatment of some kind and they can’t get instructions from the patient because they have no capacity. Then the doctors can turn to the attorney and ask for instructions about health and welfare. So there is a very clear difference that you can’t delegate health and welfare decisions.’

Should you set up Lasting Power of Attorneys for both Finance and Health?
Many people choose to set up Property & Finance LPA and not Health & Welfare, but it is advisable to do both while you still have capacity. ‘If you look at the statistics from the Office of the Public Guardian who register Power of Attorneys, far more people make Lasting Power of Attorneys for Finance than they do for Health & Welfare,’ says Rycroft. ‘But they are both equally important and you may want to choose different people for each Power of Attorney as they are very different. People very often do have the same attorneys for both but if you think about it they are very different roles and people have different qualities and talents.’

Can you make a Power of Attorney with a diagnosis of dementia?
Yes, if you are deemed to have mental capacity at the time and your solicitor is satisfied that you understand what you are doing. Gary Rycroft says: ‘I will ask the client open questions, such as: “What would happen to you if you couldn’t make decisions for yourself?” “Who would you like to have the authority to make those decisions for you?” and “Would you like to enter into a formal legal arrangement?” So long as they understand at that moment that they would like to make a Lasting Power of Attorney, why they would like to make it, who they would like to appoint and why they would like to appoint those people, that’s good enough capacity.’

Should you appoint more than one attorney?
You can appoint just one person, but it may be better to have more than one in case that person is unable to act for you when the time comes. ‘I think it’s always better to name more than one attorney,’ says Rycroft. ‘One is a risk because something unexpected could happen to that person.’

If you appoint one attorney, you can also appoint someone else as a replacement attorney who would take over if the attorney were unable to act on your behalf.

How many attorneys can you have?
There is no limit on the number of attorneys. You might choose to name your spouse and your adult children as attorneys on a Joint & Several basis, which means they are all named and can all make decisions on your behalf.

How long does it take to set up a Lasting Power of Attorney?
The process can be handled relatively swiftly with the help of a solicitor; however, the document needs to be sent to the Office of the Public Guardian where it needs to be registered. This is usually takes up to eight weeks.

What happens if you don’t have mental capacity to make a Lasting Power of Attorney?
If you are considered to be lacking mental capacity to make a Power of Attorney, a solicitor cannot make one as the document is intended to protect you. The next option is to make an application to the Court of Protection for a deputy to be appointed. This means that the court has jurisdiction to appoint someone to make decisions for you. ‘The person is called a deputy and the role is exactly the same but the person is appointed by the court rather than chosen by you,’ says Rycroft. ‘The process is expensive, time-consuming and cumbersome, so it’s much more expensive’.

This can take up to six months or longer and clearly illustrates that it’s important to set up Power of Attorney while you still have mental capacity.