Being given the responsibility of a Power of Attorney is a big deal and it’s complicated. So, once you have it you might be thinking “I have power of attorney, now what?” This article will break down, in simple terms, what power of attorney means. How to set it up if you haven’t already and the key steps to take once you have it.
What Is Power of Attorney?
Power of Attorney (POA) is a legal document that allows someone (called the donor) to give another person (called the attorney) the authority to make decisions on their behalf. These decisions might be about finances, healthcare, or both. There are different types of POA:
- Ordinary Power of Attorney – temporary and usually for specific tasks.
- Lasting Power of Attorney (LPA) – more common for long-term use. This is especially true if the donor wants to be prepared for potential future loss of capacity.
- Enduring Power of Attorney (EPA) – still in effect in some places but largely replaced by LPAs.
Here, we’re focusing on Lasting Power of Attorney (LPA). It’s designed for long-term decisions and is valid even if the donor loses the mental ability to make decisions. It is also by far the most used method with approximately 6 million registered and with over a million registering each year.
Step 1: Setting Up a Lasting Power of Attorney
Before you can act as someone’s attorney, an LPA must be set up. Here’s how to go about it:
Choose the Type of LPA – There are two types:
- Property and Financial Affairs LPA: Allows you to make financial decisions, like managing bank accounts or selling property.
- Health and Welfare LPA: Lets you make healthcare and personal decisions, like choosing care homes or medical treatments.
Filling Out the Forms
The LPA forms can be obtained online or in print. The donor fills out these forms, specifying who their attorney(s) will be and any instructions or preferences for decision-making. Read our article: Six Steps to Setting up an LPA
Certify the Forms
You will need a certificate provider. A certificate provider is usually a professional like a doctor or solicitor. They need to verify that the donor understands the LPA and is not being forced into it.
Register the LPA
The form must be sent to the Office of the Public Guardian (OPG) for registration. This can take a few weeks, and there’s usually a fee. Once the LPA is approved and registered, you, as the attorney, are ready to act on behalf of the donor. This is unless the donor has ticked the box stating that you can only act once they have lost mental capacity.
Activate the LPA
After you have registered the LPA you have 12 months to ‘activate’ it. Activation will give you the ability to use the digital service for the LPA. This means that you can send a digital code to an organisation to prove the LPA. This is instead of sending the paper copy.
Step 2: Now that you have Lasting Power of Attorney, what should you do?
If the LPA is now in effect and you’re ready to use it, here’s a step-by-step guide for what to do next. You may also want to look at our General Guide to Lasting Power of Attorney.
1. Understand Your Responsibilities
As an attorney, you have a legal duty to act in the best interests of the donor. This means:
- Considering their wishes and preferences as much as possible.
- Acting with honesty and care, always prioritising what benefits the donor.
- Keeping records of decisions and actions to show you’re acting responsibly.
2. Learn the Scope of Your Powers
Not all LPAs are the same. The donor might have put certain restrictions on what you can and can’t do. For example:
- With finances: You may have permission to access bank accounts but not to sell property.
- For healthcare: You might be able to make care decisions but not life-sustaining treatment choices.
Review the document carefully to understand exactly what decisions you are allowed to make.
3. Notify Relevant Organisations
Once you start using the LPA, you’ll need to inform banks, healthcare providers, and other institutions that you’re now acting on behalf of the donor. Here’s how:
- Provide copies of the LPA to these organisations. Some may require certified copies.
- Paper copies – always make sure you get some certified copies so you don’t have to send the original.
- Digital code – if you ‘activate’ your LPA you can send a digital code for the organisation to view.
- Complete any forms they provide for record-keeping.
This step is crucial for accessing accounts, making payments, or discussing health matters with doctors.
4. Keep Finances Separate
If you’re managing finances, it’s important to keep the donor’s money separate from your own. Set up a system to track income, expenses and any payments you make on their behalf. This will:
- Protect you legally, showing that you’re not misusing funds.
- Help if you need to report to the Office of the Public Guardian or another authority.
5. Make Decisions Based on the Donor’s Best Interests
Every decision, from paying bills to making healthcare choices, should be made with the donor’s best interests in mind. Here are a few tips for ensuring this:
- Consult the donor whenever possible to respect their preferences.
- Consider their past decisions and values as a guide for making choices.
- Seek professional advice for complicated matters (e.g., medical, financial, or legal).
- Choose the least restrictive option that respects the donor’s autonomy and rights.
6. Keep Detailed Records
Keeping a written record of major decisions and actions you take on behalf of the donor can help prevent misunderstandings. You might include:
- Receipts and bank statements for financial transactions.
- Notes on healthcare decisions and why they were made.
- Correspondence with institutions like banks or care facilities.
7. Regularly Review the Donor’s Needs
The donor’s circumstances and needs can change over time. It’s helpful to regularly check in and review:
- Their financial situation to see if any adjustments are needed (e.g., revising budgets, changing investments).
- Their health and welfare to ensure they’re receiving appropriate care and support.
Final Thoughts
Being granted a Lasting Power of Attorney is both a privilege and a responsibility. While it may seem overwhelming at first, breaking down the steps and knowing your duties will make the process smoother. Remember, you’re acting as the donor’s advocate, ensuring that their financial, health and personal needs are met according to their wishes.
Whether you’re managing bills, discussing medical treatments or just providing peace of mind, your role as an attorney can make a huge difference in someone’s life. With careful planning and a respectful approach, you can fulfill your role responsibly and honorably.
Look at our other articles for more guidance on the Lasting Power of Attorney:
Six Steps to Setting up an LPA
Top 10 Mistakes in Power of Attorney applications
View a Lasting Power of Attorney online
A Guide to the digital service Use an LPA
