Setting Up Power of Attorney

What is a power of attorney?

Power of attorney gives someone the legal authority to deal with another individual’s personal and/or financial affairs. There are two main types of power of attorney. These are:

• Ordinary power of attorney

With an ordinary power of attorney, you can choose to give someone full access to your affairs. This person can make decisions on your behalf and deal with your finances while you still have the mental capacity to do so yourself.

Ordinary power of attorney can only be used while you still have the mental ability to deal with your own affairs. This could be useful if you travel a lot and need someone to take care of things at home, or if you have a physical disability that makes certain life tasks difficult.

You can limit the power you wish to give your attorney, so that they can only deal with certain assets. For example, you may wish to allow your attorney to make decisions regarding your bank account but not your home. 

• Lasting power of attorney (LPA)

Previously known as an enduring power of attorney, an LPA allows you to prepare for when you may no longer have the mental capacity to manage your own affairs. 

There are two types of LPA. One deals with health and welfare and the other with your financial affairs and property. You can choose to make an LPA that covers one of these areas, or both.

It’s worth noting that a health and welfare LPA will only become valid when you lose the mental capacity to make your own healthcare decisions. But a financial affairs LPA can be used as soon as it is registered.

Why might I need to give someone power of attorney?

One in three people in the UK feel they don’t understand how power of attorney works, according to a recent survey by Scottish Widows. Many people feel that it’s something that doesn’t need to be thought about until later in life. But this isn’t necessarily true.

The best time to set up a power of attorney is when you’re in relatively good health. Legally you’re not allowed to implement a power of attorney after losing mental capacity, so it’s important not to leave it until it’s too late.

Putting a power of attorney in place will give you the peace of mind that someone you trust will be in charge of your affairs if you ever lose mental capacity. This could apply if you develop a degenerative condition like Alzheimer’s, or suffer a serious accident.

What are the steps for setting up a power of attorney?

With the help of a specialist power of attorney solicitor, you’ll need to follow the steps below to set up a power of attorney:

• Seek guidance
  You can do this by contacting the Office of the Public Guardian (OPG), whose job it is to provide you with the support that you need to register a power of attorney.
• Choose the attorney(s)
  This could be a family member, friend or solicitor. The most important thing is that it is someone you trust. They must also be over the age of 18.
• Complete the document(s)
  Power of attorney documents use a very precise, strict format. And you must draw up separate documents for different types of power of attorney. This is where an experienced solicitor can help.
• Get certification
  Every power of attorney document must carry the signature of an independent third party. The third party signature verifies that you understand the nature of the document and have agreed to its registration.
• Give request for notice
  This will only apply when an LPA is being registered and there were ‘people to notify’ listed in the original document. These people will need to be told in advance of the LPA being registered, and they’ll have three weeks to object.
• Put the power of attorney into effect
  If the time for the power of attorney to take effect ever arises, your attorney(s) must register it with the Office of the Public Guardian.

Who can override a power of attorney?

Only the Office of the Public Guardian or the Court of Protection have the authority to override or remove a power of attorney.

If the person who set up the power of attorney still has mental capacity, they’ll need to apply to the OPG to have it revoked or amended. But if the individual no longer has the mental ability to deal with their own affairs, the Court of Protection will need to intervene.

Family members and friends can also apply to the OPG if they feel that there is an issue with the LPA in place. But it will ultimately be up to the OPG to decide whether the power of attorney should remain.

How much does a power of attorney cost?

To register a power of attorney in England and Wales, you’ll need to pay a fee of £82. But if you receive certain benefits or earn less than £12,000 a year, you may be able to apply for a reduction or exemption.

There will also be legal costs to cover if you decide to use a solicitor. These fees can range from £600-£1,000 but your solicitor will explain their pricing plan to you during your initial conversation. So there will be no unexpected costs further down the line.

We understand that you may be concerned about the cost of using a solicitor. But their legal expertise could save you time and money in the long run. This is because there will be less chance of the OPG rejecting your application, which can often result in re-submission charges.

I want to set up a power of attorney – do I need a solicitor?

When you set up a power of attorney, you’re essentially giving someone else the power to make key decisions about your life. So while it is possible to apply for a power of attorney yourself, using the services of a solicitor can help to provide some additional security.

For instance, an experienced solicitor will carefully check your power of attorney document for mistakes that could otherwise be missed. They will also ensure that the entire process is carried out legally, so your wishes will be adhered to when the time comes.