I have Power of Attorney, what now?

If you have been appointed as an attorney under a Lasting Power of Attorney (LPA), you may be wondering what steps you need to take on behalf of the donor. We answer the question, I have Power of Attorney, what now? looking at both your authority to make decisions and your responsibilities to the donor.

At Lockings Solicitors, we draft LPAs for clients and also advise and assist attorneys in carrying out their duties. We have particular expertise in this area of law, with many years of experience held by our team.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney gives someone legal authority to deal with matters on your behalf, should you lose the mental capacity to do so yourself. There are two types of LPA and you can make one or both:

• Property and financial affairs Lasting Power of Attorney
• Health and welfare Lasting Power of Attorney

You can appoint more than one attorney for each type of LPA. You can also have different attorneys for each LPA if you wish. For example, you might want one child to deal with your financial affairs and another child to handle your healthcare decisions.

An experienced LPA solicitor will be able to work with you to establish what authority you want to give to your attorney and draft the right LPA for you to sign. You can specify how you want your attorney to act and restrict what they can do if you wish.

Does a Lasting Power of Attorney need to be registered?

An LPA cannot be used until it is registered. For this reason, it is usually best to register it with the Office of the Public Guardian (OPG) as soon as it has been signed. The OPG may take three months or more to process the application and may also have questions.  By registering it straightaway, you have the reassurance of knowing that it is ready to use, should this ever be necessary. We can register and LPA for you if needed.

A property and financial affairs LPA can be used as soon as it has been registered, even if the person who made the LPA (the donor) still has mental capacity. This can be useful if the donor needs help, for example, because they cannot get to the bank or because they will be overseas.

A health and welfare LPA can only be used if the donor has lost the ability to manage their own affairs.

Using a Lasting Power of Attorney

It can be hard to know when is the right time to step in and start managing someone’s affairs for them if they are starting to lose the ability to do so themselves.

To be able to make a decision an individual needs to be able to:

• Understand the implications of the decision
• Hold information long enough to be able to use it in making the decision
• Understand the information they need to make the decision
• Be able to weigh up the information
• Be able to communicate their decision

If you need help in deciding whether it is time to put an LPA into use, we can give you advice and guidance.

You will need to notify the list of ‘people to notify’ included on the LPA.

Once the decision has been made to take over some or all of the donor’s affairs, you will need to provide copies of the registered LPA to anyone who needs to see it. This includes banks and other financial institutions and care providers. They will generally have their own forms for you to fill in to take over the donor’s matters for them.

Alternatively, you can use the government’s online LPA activation service if the LPA was registered after 1 January 2016. You may have been provided with an activation key if the LPA was registered on or after 17 July 2020. If you do not have this, you can request a new or replacement code.

The online service allows individuals or organisations to view a summary of the LPA. It is not available for LPAs registered before 1 January 2016.

Decisions you can make for someone as their attorney under an LPA

Property and financial affairs LPA

The LPA will set out any limitations on your authority. The types of actions you can generally take under a property and financial affairs LPA include:

• Paying bills
• Arranging for insurance and maintenance of the donor’s home
• Collecting pension payments and benefits
• Investing
• Providing money for day to day living expenses
• Making some small cash gifts to people to whom the donor would have given gifts themselves, if they were able, on occasions when they would normally give a gift, such as a birthday
• Small charity donations that the donor would have made, generally to a charity they have supported before – they must be able to easily afford both gifts and donations

You will need to apply to the Court of Protection for authority to make larger gifts. This includes giving someone the benefit of the donor’s assets, such as allowing someone to live in their property without them paying the full market rent.

You should also take legal advice if you need to sell or transfer the donor’s property. You may need specific authority from the Court of Protection to do this.

Health and welfare LPA

A health and welfare LPA will also specify any restrictions on decisions that you can make for the donor. Decisions you may be able to make include:

• Where the donor will live
• What help they will have
• What their daily routine will be
• What medical treatment they will receive
• What treatment will be refused

In some cases, it may be necessary to ask the Court of Protection to make a decision, for example, if some of the donor’s family disagree over what should happen.

Responsibilities as an attorney under a Lasting Power of Attorney

When you take on the role of attorney, you will have a range of responsibilities to the donor. These include:

• Abide by the terms of the LPA, which may contain restrictions on what you can do on the donor’s behalf
• Abide by the five main principles contained in the Mental Capacity Act 2005, as follows:
  • Presume the donor has capacity until and unless they do not
  • Help the donor to make decisions themselves if this is possible
  • Remember that a donor has the right to make an unwise decision
  • Act in the best interests of the donor
  • Act in a way which causes minimum restriction to the donor’s rights and freedoms
• Keep accurate financial records of everything done on behalf of the donor
• Record any major decisions and details of how they were made, such as a note of anyone who was consulted

Acting in the best interests of the donor includes taking into account their values and beliefs. Where necessary, this can be discussed with those close to the donor.

Contact our East Yorkshire and York area Power of Attorney solicitors

If you have been granted a Lasting Power of Attorney and you would like advice in respect of the next steps to be taken or assistance in managing the donor’s affairs, we would be happy to hear from you.