A Power of Attorney is a legal document that allows you to appoint someone you trust, known as your “attorney,” to make decisions on your behalf if you become unable to do so yourself due to illness, injury, or incapacity. The appointed attorney can manage your finances, property, or healthcare matters, ensuring your interests are protected when you can no longer manage them independently.
There are two main types of Power of Attorney: Lasting Powers of Attorney (LPA) and Ordinary Powers of Attorney (OPA). An LPA is used to safeguard against the possibility of losing mental capacity in the future, allowing you to appoint someone you trust (an “attorney”) to make decisions on your behalf if you become unable to do so. An OPA is for short-term situations where you temporarily delegate decision-making authority. We can assist you in choosing the right type and ensure the process is handled correctly to protect your interests.
If you are considering setting up a Lasting Power of Attorney, or need advice on managing someone’s affairs, please call us on 0203 924 8462 or fill in our contact form. Our experienced solicitors are here to provide clear, practical guidance tailored to your individual needs.
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This allows your attorney to manage your financial affairs, including:
Accessing and using bank accounts
Managing investments and working with independent financial advisors
Managing pensions
Paying bills and taxes
Buying or selling property
This type of LPA gives your attorney the authority to make decisions about consenting to or refusing medical treatment on your behalf. It also includes a section specifically covering life-sustaining treatment, allowing you to grant your attorney the power to consent to or refuse such treatment.
This includes:
Consent or refusal of medical treatment
Deciding where you live
Care packages
Multidisciplinary team discussions and care arrangements
Discussions with social services or other care providers
Medical care and accessing medical records
Property and Finance LPAs can be used even if you still have mental capacity. This is particularly useful if you would like your attorneys to step in to assist you if you are physically struggling (for example, hearing on the phone). You can still direct them as to how to manage things.
Health and Welfare LPAs can only ever be used if you have lost mental capacity.
Both types of LPA allow you to add specific instructions or preferences, ensuring decisions reflect your values. We can guide you through this process and ensure your powers of attorney meet your exact needs and wishes.
Once registered, LPAs cannot be amended; you would need to create a new one to make any changes.
A Lasting Power of Attorney (LPA) offers several key benefits, providing protection and peace of mind for both you and your family. This includes:
Protection & Security: An LPA ensures that trusted individuals can step in to make important decisions on your behalf if you are no longer able to do so.
Peace of Mind for Your Family: Putting a Power of Attorney in place means your loved ones can avoid the time-consuming and expensive process of applying for a Deputyship through the Court of Protection if you lose mental capacity.
Flexibility: You can appoint different attorneys for your Property and Financial Affairs LPA and your Health and Welfare LPA, depending on who you trust and who is best suited to make decisions in each area.
Business: If you own a business, a separate LPA can be set up to manage your business affairs in case you are unable, allowing continuity of operations.
Mental capacity is not a fixed condition; it can fluctuate and is highly dependent on both the timing and the specific decision at hand. For example, you might have the capacity to decide whether to receive a flu jab but lack the capacity to determine whether it’s safe for you to live independently at home. Your attorneys have a duty to ensure that you are given every opportunity to make decisions for yourself, wherever possible.
In England, mental capacity is defined under the Mental Capacity Act 2005, which sets clear criteria for determining whether someone can make a particular decision. According to the Act, a person is considered to lack mental capacity if they are unable to:
Understand the Relevant Information: The individual must be able to understand the information that is relevant to the decision at hand.
Retain Information: The individual must be able to retain the information for a sufficient period of time to make an informed choice.
Use or Weigh Up the Information: The individual must be able to use or weigh the information to reach a decision.
Communicate Decision: The individual must be able to communicate their decision, whether verbally, through sign language, or by other means.
It’s essential to understand that mental capacity is not linked to a person’s general intelligence or cognitive ability. Instead, it concerns their ability to make specific decisions at a particular time. A person may be able to make certain decisions, such as managing their finances or everyday choices, but may struggle with others, such as medical decisions during an illness or when experiencing mental health difficulties.
If there’s any doubt about someone’s mental capacity to make a decision, it’s important to seek a professional assessment. Medical professionals or other qualified individuals can assess whether someone has the capacity to make a specific decision. If necessary, we may recommend obtaining a professional capacity assessment before proceeding with an application for a Lasting Power of Attorney.
When creating a Lasting Power of Attorney, a certificate provider is required to confirm that you fully understand the implications of creating the LPA and that you are not under any undue pressure to sign the document. This step serves as a safeguard to ensure that the LPA is valid and accurately reflects your true wishes.
As part of this process, we can guide you through every step and act as your certificate provider. Alternatively, we can serve independently as a certificate provider.
Our role includes:
Verifying Your Capacity: We will confirm that you understand the nature and effect of the LPA and your motivation for putting LPAs in place.
Witnessing the Signing of Your LPA: We will be present when you sign the LPA to ensure that the process is conducted properly.
Ensuring Independence: As independent certificate providers, we try to ensure there is no undue influence or coercion in the creation of your LPA, protecting your autonomy throughout the process.
It’s important to understand that Lasting Powers of Attorney are only valid during your lifetime. The authority granted to your attorneys to manage your affairs will cease upon your death. After this, probate is the legal process required to handle your affairs, typically managed by the person you’ve appointed as Executor in your Will. If you don’t have a Will, your closest living relative will generally take on this responsibility.
If you’d like to discuss making or updating a Will, we are here to assist you with that process as well.
If you lose mental capacity without having an LPA in place, a family member or social services will need to apply to the Court of Protection to appoint a deputy to manage your affairs. This process means you would lose control over who is chosen to oversee and manage your finances. Usually a Deputy is not appointed for health and welfare decisions but instead specific applications are required for each medical decision that needs to be made.
The cost and time involved in this application are significantly higher than creating an LPA. It can only be made after you’ve lost mental capacity, and a specialist report is required by the Court to confirm that you no longer have the ability to manage your own affairs. Additionally, deputies are subject to more stringent restrictions, and the application process is much more complex. This can however provide more safeguarding as deputies are more closely monitored.
Without an LPA, there can be delays before anyone can access your bank accounts to pay bills or manage standing orders. This can have serious consequences, particularly in funding care home fees and other essential needs. This situation can cause significant stress for family members left to navigate this complex process.
For full details of our charges, please refer to our pricing page.
When considering a Power of Attorney, it is important to understand the key terminology that governs the process.
The commonly used terms are:
Donor: The person creating the Power of Attorney.
Attorney: The individual(s) appointed to act on behalf of the donor.
Deputy: A person appointed by the Court of Protection to act for someone who has lost mental capacity.
Court of Protection: A specialist court that deals with all issues relating to individuals that have lost mental capacity.
Capacity: The ability to make decisions about a particular matter at the time the decision needs to be made.
Office of the Public Guardian: The Public Guardian is an officer established under Section 57 of the Mental Capacity Act. The Public Guardian will be supported by the Office of the Public Guardian, which will supervise Deputies, keep a register of Deputies, LPAs and EPAs, and investigate any complaints about Attorneys or Deputies.
Lasting Power of Attorney (LPA): Power of Attorney created under the Mental Capacity Act appointing an Attorney to make decisions about the Donor’s personal welfare (including healthcare) or deal with the Donor’s property and affairs.
Enduring Power of Attorney (EPA): An old form of Power of Attorney that is no longer created. You may come across old drafted and unregistered EPAs. An unregistered EPA can only be used where the donor has capacity and only in relation to finances. After loss of capacity, it must be registered with the Office of the Public Guardian before it can be used.
Please reach out to us for expert advice and guidance tailored to your specific circumstances. We are committed to providing clear, practical support and helping you find the solution that best meets your needs.
An Ordinary Power of Attorney (OPA), sometimes referred to as a General Power of Attorney, is a legal document that allows you to appoint an individual, known as your attorney, to manage your financial affairs on your behalf. This arrangement can be particularly useful if you are temporarily unable to handle your own financial matters due to illness, travel, or a period of physical incapacity. Unlike a Lasting Power of Attorney (LPA), which remains in place even if you lose mental capacity, an OPA is only valid while you still have the ability to make decisions. Once you lose mental capacity, an OPA becomes void.
This type of power of attorney can be tailored to suit your specific needs and can include tasks such as managing bank accounts, paying bills, or handling property transactions. However, because it is limited in scope and duration, an OPA is often seen as a more temporary solution compared to an LPA, which provides long-term arrangements for healthcare and financial decisions.
An OPA offers a flexible and practical solution for managing financial affairs when you temporarily need assistance. It is an effective tool for delegating financial responsibilities to a trusted individual while you retain mental capacity.
The key features of an OPA includes:
Flexibility: Specifies which financial matters the attorney can manage, such as paying bills and managing bank accounts to handling investments and property transactions.
Revocability: You can revoke or cancel the OPA at any time while you have mental capacity.
Time-limited: An Ordinary Power of Attorney is only valid while you have mental capacity, making it suitable for temporary situations. It can be restricted to a specific transaction or set for a fixed period, such as six months.
An OPA offers several benefits that can simplify the management of your financial affairs during short-term situations.
The key advantages of an OPA includes:
Convenience: A General Power of Attorney allows you to delegate financial responsibilities to someone you trust, ensuring your affairs are managed smoothly in your absence or when you are unable to act. It does not need to be registered and can be used immediately after it is signed.
Peace of Mind: Appointing someone you trust to manage your financial affairs can offer reassurance and stability, particularly during periods of absence or difficulty.
Control: An Ordinary Power of Attorney gives you full control over the powers you delegate, allowing you to tailor it precisely to your individual needs and preferences.
Time Frame: Since it does not require registration, an OPA can be created and used quickly, making it ideal if you need immediate support during a specific transaction or time-limited situation.
Creating an Ordinary Power of Attorney involves several key steps to ensure that your financial affairs are managed according to your wishes. Below is a guide to help you through the process:
Choose Your Attorney: Select a trusted individual or individuals to manage your affairs. This can be a family member, friend, or professional advisor who will act in your best interests.
Define the Powers: Clearly outline the specific financial responsibilities you wish to grant to your attorney. This may include managing bank accounts, paying bills, handling investments, or dealing with property transactions.
Draft the Document: Prepare the Ordinary Power of Attorney (OPA) document, detailing the powers granted and any specific instructions or restrictions. We recommend seeking legal assistance to ensure the document complies with all legal requirements.
Sign and Witness: Sign the OPA document in the presence of a witness. Your chosen attorney(s) should also sign to confirm their acceptance of the role and responsibilities.
Distribute Copies: Provide copies of the OPA to your attorney(s), bank, and other relevant institutions, ensuring that all parties involved are informed of the arrangement.
We offer expert support in creating Ordinary Powers of Attorney, ensuring that the document is tailored to your needs and legally sound.
An Ordinary Power of Attorney is not valid if you lose mental capacity. If you wish to create a document that will remain valid in the event of future capacity loss, consider a Lasting Power of Attorney (LPA).
If you’re considering creating or updating a Lasting Power of Attorney, or need guidance on any aspect of your mental capacity planning, we’re here to provide clear, practical advice tailored to your needs.
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Speak with one of our experienced solicitors today for confidential, supportive advice on making informed decisions about your future.
