If you have elderly parents like I do, sorry mum, then you need to plan ahead. Not just with your elderly relatives, but with yourself as well. No one knows what the future will hold and whilst we all hope for a long and healthy life, that isn’t always possible. What would happen if the worst was to happen and you or your elderly relatives lost their mental capacity? A relative or trusted friend cannot just walk into a bank and access your money, even if its to pay your bills or for care.
Power of Attorney can only be set up whilst you still have the mental capacity to make decisions for yourself. If you’ve already lost mental capacity without having set up a Power of Attorney, then whoever steps up to take that responsibility has to apply through court to become a “deputy” which is a long and expensive process.
You might think that this won’t affect you or that you’re too young or healthy to think about something like that, which is a common attitude to have. But the key thing to remember is that you can only set up Power of Attorney whilst you have the mental capabilities to do so. So it makes sense to have this in place already, even if it is not needed. This is what I have done. My mum has a residential lettings business so if she was in the hospital or ill and couldn’t make any decisions, then I have Power of Attorney meaning I have the legal right to make decisions in her place.
You don’t have to limit yourself to just one trusted friend or relative, you can appoint more than one. You can also determine whether decisions have to be made together or whether one representative can make the decisions on their own. Think carefully about which to decide, if you decide that decisions have to be made together then, in the case of the Health and Welfare Power of Attorney, it could delay treatment if all representatives aren’t available.
Regardless of your health, everyone should consider a Lasting Power of Attorney. Anyone over 18 can set it up, you don’t have to wait until you’re ill.
But what is Power of Attorney?
Lasting Power of Attorney helps if someone has difficulties and they can’t make decisions, whether for a short or long period of time and they need help managing their finances. Lasting Power of Attorney is a legal document where someone, whilst they still had the mental capacity, nominated a trusted friend or relative to look after their affairs if they could not.
Whoever you choose, they should only make a choice for you if you’re unable to make that specific decision at the time it needs to be made. If you were in a coma, for example, they could look after your affairs whilst you were unconscious but once you regained consciousness they regain the power to make their own decisions again.
Granting someone a Lasting Power of Attorney doesn’t mean you give up control. You can choose whether it can be used either before, or only when you lose the mental capacity to manage your own affairs.
Are there more than one types of Power of Attorney?
In England and Wales, there are two different types of Power of Attorney, one which focuses on the persons’ finance and property and another for health and welfare. In Scotland, there are three Powers of Attorney, one for Financial Matter, called a Continuing Power of Attorney, one for Personal Welfare, called a Welfare Power of Attorney and a combined Power of Attorney which covers both financial and welfare matters, which is the most common.
Whilst the financial Power of Attorney gives your nominated person power over your bank accounts, finances and property. The Health and Welfare Power of Attorney gives your nominated person the right to make decisions over day-to-day healthcare and medical treatments, as well as dealing with any health or social care staff.
These are two separate legal procedures that are independent of one another. If you so choose you could give nominate one person to look after your finances and another to look after your health and welfare. Even if you chose to have one nominated person look after both aspects, you will still have to fill in two forms.
One important point is that the Health and Welfare Power of Attorney can only be used after you lose mental capacity and not before.
What do you mean by Mental Capacity?
Every day we make decisions about our lives. This ability is known as Mental Capacity. Some people may not be able to make decisions some or all of the time. This could be because of a learning disability, dementia, brain injury or stroke.
Having a mental health condition, such as depression, bipolar disorder, schizophrenia or similar doesn’t necessarily mean someone lacks capacity.
The Mental Capacity Act 2005 says a person is unable to make a decision if they can’t do one of the following; understand information relevant to a decision, retain that information long enough to make the decision, use or weigh that information or communicate the decision.
When you make a Power of Attorney in England or Wales, a “certificate provider” decides if you’re capable of making that choice. This can be someone you’ve known for a minimum of two years or someone with relevant professional skills such as a doctor, lawyer or social worker. In Scotland, this must be a solicitor who is registered to practice law in Scotland or a doctor.
How Much Does it Cost?
If you use a solicitor, then the costs will vary. If you’re applying yourself then there’s a compulsory cost of £82 to register a Power of Attorney in England and Wales. In Scotland, it costs £75. If you earn less than £12,000 a year and you can provide evidence to support this then you can have it at the reduced fee of £41 and those on certain benefits are exempt from fees.
The £82 is per Power of Attorney so if you decide to set up both Power of Attorneys (finance and welfare) then it will cost £164.
How to Make a Power of Attorney
You can make a Lasting Power of Attorney yourself via an online form or you can use a solicitor to set it up for you. We did my mum’s online and it was easy and straightforward. The most important thing is that you feel comfortable with your choice and that you trust them. Sadly, in some cases, family or friends may just be after your money and might not have your best interests at heart, which is why you need to decide how much you trust them.
In England or Wales. If you decide to apply yourself then you can either apply online or download the forms. Whichever choice you choose you will still need to print out the forms and sign them. The person making the Power of Attorney and their chosen representative/s must also sign the forms. If you do get stuck you can call the Office of the Public Guardian on 0300 456 0300. In Scotland, you can download the forms from the Office of the Public Guardian (Scotland) and call 01324 678 398 for help.
The Power of Attorney can be used as soon as it’s registered unless you specify that the representative is restricted to making decisions only after the person loses capacity.
Finally a “certificate provider” signs the form to verify that the person understands what the Power of Attorney means and hasn’t been coerced into filling in the form. A Certificate Provider can be someone who has known the person for a minimum of 2 years or someone who has a professional skill or knowledge about their situation, like a doctor, social worker or solicitor. Family members cannot be certificate providers. Not even extended family members, in-laws or step.
In Scotland, only a solicitor who is registered to practice law in Scotland or a doctor can complete a Certificate of Capacity to ensure that you understand what you are doing.
Once the form has been completed you need to send the application to the Office of the Public Guardian to register it.
You can register the Power of Attorney either before or after someone loses capacity provided they filled in the forms correctly and whilst they still had the mental capacity to do so. Registering early gives you time to sort out any problems and means its ready to use when needed.
Once the Power of Attorney is registered, the nominated representative will only be able to make choices for the person when the person is unable to make the decisions at the time that the decision needs to be made. It usually takes about 8 to 10 weeks to register an application, provided there are no mistakes. People then have 3 weeks to object if they think that the person making the application was pressurised or lacked capacity when they filled in the forms. If the person who is making the Power of Attorney objects, the process stops and the only way to register would be to apply to the Court of Protection to prove that the person didn’t have the capacity to object.