How do we define Power of Attorney? Simple. A legal document that allows someone to make major decisions on a person’s behalf.
‘Power of Attorney’ has often featured in TV dramas and movies over the years. The person giving Power of Attorney (referred to as the ‘donor’) is agreeing to surrender decision making on medical issues, financial matters, and other life-changing issues. The recipient would have access to your bank accounts and if they are not related to you, could have more of a say in your life, than even a family member.
Granting a Power of Attorney is not a decision to be taken lightly.
It is important that anyone who grants a Power of Attorney is still able to understand the implications of their decision. This ability is referred to as ‘mental capacity’ – and if the donor is believed to have lacked the mental capacity to give their power away, a legal dispute can result.
At Van Eaton Solicitors, we have years of experience in supporting all parties in disputes around Power of Attorney.
A Power of Attorney allows a trusted person, named in a document, to act on a person’s behalf, and depending on the type of Power of Attorney, to carry out their wishes. They could be able to make major decisions on your behalf about a person’s health, personal welfare/well-being, money and property.
The most common types of attorney are:
Ordinary Powers of Attorney
By producing a Power of Attorney document, you as the donor will appoint one or more people to manage your affairs and help you to make decisions – or they could make them on your behalf.
A Power of Attorney document will not be valid – or will be open to challenge if a donor is not of sound mind at the time of creating it.
Ordinary Powers of Attorney cease to be valid if the donor loses their mental capacity later. For this reason, donors should think very carefully about the future and what the long-term plan around decision making should be.
Lasting Power of Attorney (LPA)
Also referred to as a ‘durable Power of Attorney’. Donors who are concerned about a future loss of mental capacity should consider LPA. The power of LPA will continue if the donor’s mental capacity declines due to an accident or disease (such as Alzheimer’s).
There are two types of Lasting Power of Attorney to consider:
1. Health and Welfare LPA
2. Property and Financial Affairs LPA
A donor can choose to make either type of LPA – or they can choose both.
(1): Health and Welfare LPA:
This type of lasting Power of Attorney may be appropriate for issues affecting your day to day life in terms of self-care (washing, eating or getting dressed) or medical care.
Talk to us for advice, but in general, you be especially aware of instructions about refusing or consenting to treatment.
You will need to:
- show the LPA to care staff
- sign medical consent forms
- make decisions in the donor’s best interests.
Please bear in mind that there are circumstances where you may not be able to make decisions about the donor’s medical treatment, for example if the donor has made a living Will or has been sectioned under the Mental Health Act 1983.
Living Wills (‘advance decisions’) and Lasting Power of Attorney: This is a legal instruction or statement from the donor regarding the medical treatments and/or interventions that they do, or do not want. You will need to give this to care staff along with the Lasting Power of Attorney document.
We’d recommend you look at advice from NHS Choices regarding information about advance decisions.
(2): Property and Financial Affairs LPA:
This form of lasting power relates to issues such as
- The donor’s money, taxation, and their bills
- Their bank or building society accounts
- Any property that they own or any investments
- The donor’s pensions and other benefits
An attorney acting on someone’s behalf with a Property and Financial Affairs Power of Attorney could use the donor’s money to manage their home or buy any day to day items (for example, clothing or food).
Someone with this type of LPA could discuss decisions that impact living arrangements, healthcare, or the donor’s daily routine with their separate ‘health and welfare attorney’, if the donor has appointed one. The ‘Attorney’ can apply for a statutory Will if the donor needs to make a Will but cannot do it themselves. They cannot, however, legally change a donor’s Will.
Enduring Power of Attorney (EPA)
Since 1st October 2007 it has not been possible to create a new Enduring Power of Attorney; those created before this date will however remain valid. This type of power is used where a person becomes mentally incapacitated and a person that you appointed can act on your behalf. The EPA has since 2007, been replaced by the LPA
How to dispute a Power of Attorney:
It is becoming increasingly common for disputes to occur over the care of a person’s health and finances in relation to Power of Attorney.
You may consider a dispute over Power of Attorney if you believe that power has been granted to the wrong person or that the donor did not have the required mental capacity to grant Power of Attorney. You also be concerned that an attorney’s actions are not in the best interests of the donor.
A Power of Attorney found to have been signed because of fraud or undue influence is not legally binding and will not be upheld.
Alternatively, you may be the attorney, who is facing a challenge in respect of your actions. We will publish more advice on this very soon – or you can call us for immediate assistance.
We specialise in advising in respect of Power of Attorney related issues in England and Wales.
You must seek professional advice before taking any action. The formalities around Power of Attorney issues can be complicated. If you were later involved in any dispute or challenge, you will be in a far better position if you have already been supported by qualified legal advice in advance.
We, as specialist solicitors can confidently liaise with The Court of Protection, which deals with affairs of people who lack the ability or capacity to make their own decisions.
If you need advice about Powers of Attorney, we are ready to help. Contact us to understand how a specialist litigation lawyer can help with any form of Power of Attorney challenge or dispute. We would strongly advise you to talk to us before you grant any Power of Attorney.
Similarly, if you are taking on the responsibility of Power of Attorney, please take a little time to liaise with us for and advice you may need. We certainly believe that we’re one of the best solicitors in London to help.
Principal, Van Eaton Solicitors.
Jo Walia is an experienced Civil Litigation, Wills & Probate specialist that serves clients across England and Wales. You can request a no-obligation consultation by getting in touch using the form below.