When your loved ones get ill, you may find that they struggle to cope with all the demands of modern living. Financial obligations can pile up. They may even begin to struggle with their own welfare. You might also worry that they may lose their mental capacity. This is why it’s worth discussing power of attorney with your loved ones in order to provide the best possible care.
But what is power of attorney? And how do you get it? Keep reading this simple guide to find out more.
Power of attorney is a legal document that allows one or more people to support an individual with their decision-making, or even make decisions on their behalf. There are two main types: ordinary power of attorney (OPA) and lasting power of attorney (LPA).
Both documents allow the named person or persons to care for an individual’s finances. If you are named as one of these persons, you are known as an “attorney”. This gives you the legal authority to deal with third parties on behalf of your loved one. These third parties can include banks or local councils. They may also allow you to make certain decisions about their welfare.
Power of attorney can only be given or applied for by your loved one, and they must have ‘mental capacity’ to do so. Mental capacity is defined as the ability to make and communicate your own decisions.
This option is best if your loved one is temporarily struggling with their finances due to sickness or injury. It is relatively easy to set up and empowers you to take care of any money worries whilst your loved one is recuperating. If your loved one wishes, they may also trust you to make certain decisions about their welfare.
There is no official form for an OPA, though there is a recommended wording that you should use. The document must outline what powers your loved one is entrusting to you, or any other attorneys they choose.
An OPA can be rescinded by your loved one at any time, and has no legal power if they lose their mental capacity. If your loved one is likely to lose their mental capacity, a lasting power of attorney will be necessary.
This is the best option if your loved one is worried that an illness may cause them to lose mental capacity. It can empower the attorney to make decisions on their behalf regarding both finances and welfare. The welfare portion will only come into effect in the event of them losing their mental capacity.
Situations that may lead to such a loss include dementia, stroke, and brain injuries. If your loved one has been diagnosed with an illness that may result in a loss of mental capacity, it is crucial that you speak with them as soon as possible regarding a lasting power of attorney.
This is because, like an OPA, an LPA requires that the applicant still have mental capacity when they apply. However, the LPA, unlike an OPA, will remain in effect should this change.
With this document, you will be able to decide when and where they receive treatment, where they live, who provides care for them – which could include live-in or domiciliary carers – and even day-to-day living arrangements, such as what they eat or wear. Of course, even though you have this power, it’s still important to take your loved one’s wishes into account and give them the opportunity to make decisions wherever possible.
Now you know what power of attorney is, you may be wondering how to apply.
First, you must make sure that your loved one understands what it means. Power of attorney is an important legal document – give them some time to think about it if possible. The worst thing you can do is rush them into a decision. They need to know under what circumstances it will come into effect, and what power their chosen attorney(s) will receive. It should be a sensitive discussion, addressing all your loved one’s concerns. If they are opposed to the idea, then that decision must be respected.
If your loved one does opt to go ahead, they should decide who will be listed as an attorney. This decision should be made before any paperwork is requested or filled in. Make sure you have read all official guidance on the matter, and that your loved one has too.
When they are happy to go ahead, make sure to have people they trust ready to act as witnesses.
As mentioned earlier, an ordinary power of attorney, or OPA, is easily established. Your loved one must have mental capacity in order to grant an OPA, but as long as they have signed a properly worded document, the Power of Attorney is legally sound. It can be rescinded at any time by your loved one with a Deed of Revocation or will be automatically annulled should they lose their mental capacity.
Due to the comparatively informal nature of the OPA, it is free to implement. You and/or your loved one should seek legal advice if you have any concerns about an OPA. You should not opt for an OPA if your loved one has been diagnosed with a condition that is likely to affect their mental capacity in the near future.
A lasting power of attorney requires official registration with the Office of the Public Guardian. This can be done online, or you can use paper forms. You will also require witnesses when signing. The chosen attorneys cannot be counted as witnesses for your loved one’s signature.
Everyone must sign the same document and be witnessed doing so. Your loved one must also send a notification form to any “people to notify” listed on the lasting power of attorney paperwork. These “people to notify” have a right to raise any concerns they may have.
Your loved one must then apply to register their lasting power of attorney, or they may ask you, as attorney, to do it for them.
Applying for a lasting power of attorney is not free; it costs £82 to register each LPA. If your loved one has chosen to register both a property and financial affairs LPA and a health and welfare LPA, then the price will be £164. Your loved one may be eligible for a reduction or an exemption if they earn less than £12,000, or if they are on certain benefits.
The official application form has more information on these reductions and exemptions.
Once the lasting power of attorney has been registered, it will come into effect should your loved one lose their mental capacity. Then all decision-making will rest in the hands of the chosen attorneys. If more than one attorney has been chosen, then decisions may have to be made together. This depends on what has been outlined in the official document.
For further guidance on power of attorney, consider checking the official government guidance or reading the NHS Information.
If you are interested in providing care for your loved one, either before opting to pursue a lasting power of attorney, or as part of your responsibilities as an attorney, then consider our competitively-priced care services here at Abing Homecare. For more information, call us on 0800 008 7000, or use our Online Form.
Editor’s Note: This article was updated on 21st September 2021 to reflect current information.