General Power of Attorney

A General Power of Attorney serves as a handy legal tool when you need to authorize someone else to manage your property for a specific period. Whether you’re traveling on vacation, relocating abroad for a few years, or spending time in the hospital, this document can help ensure your affairs are in order.

For instance, if you need to exchange contracts on a property while you’re away, a General Power of Attorney allows your chosen attorney to handle the necessary tasks. They can sign any amendments to the contract if any issues come up.

It’s important to note that you must have the  full mental capacity to create and use a General Power of Attorney. Once you sign the document, it’s effective immediately and doesn’t require registration. If you lose mental capacity, however, this type of power of attorney can no longer be used, and you would need a Lasting Power of Attorney instead.

What is an Enduring Power of Attorney?

When the Mental Capacity Act 2005 came into force on 1^st October 2007, it replaced Enduring Powers of Attorney (EPAs) with Lasting Powers of Attorney (LPAs). However, EPAs made before 1^st October 2007 remain perfectly valid, and many people still have them.

An EPA is a legal authority granted to one or more people (attorneys) by a mentally capable person to act on their behalf in property and financial matters should they lose mental capacity. If and when they lose capacity – and before the attorneys can act – there’s a legal requirement to register the EPA with the Office of the Public Guardian (OPG). After that, the EPA is used to manage the person’s financial affairs without the need to apply to the Court of Protection.

Many individuals who established an EPA before 2007 have opted to switch to a Lasting Power of Attorney (LPA). This shift happens because an LPA allows you to appoint individuals to make decisions regarding both your health and finances. Plus, you can register an LPA immediately, enabling the documents to be ready for use without delay, rather than waiting for registration after you’ve lost mental capacity. Additionally, you can revoke an EPA through a Deed of Revocation.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows you to appoint one or more people to make decisions on your behalf if you are no longer able to make them due to a lack of mental capacity or if you simply do not want to. You can only create an LPA if you have the mental capacity to do so and you have not been put under any pressure to set it up.

What Are the Different Types?

There are 2 different types of LPA’s and they are treated as separate documents. You do not have to set both up at once, but it is recommended to do so for peace of mind.

Health & Welfare

This covers health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:

• where you should live
• your medical care
• what you should eat
• who you should have contact with
• what kind of social activities you should take part in
• having a say regarding care or going into a care home

You can also give special permission for your attorney to make decisions about life-saving treatment.

We advise you to write down any specific wishes regarding health decisions and store them alongside the documents.

Property & Financial Affairs

An LPA for financial decisions can be used while you still have mental capacity or you can state that you only want it to come into force if you lose capacity.

An LPA for financial decisions can cover things such as:

• buying and selling property
• paying the mortgage
• investing money
• paying bills
• arranging repairs to the property

You can restrict the types of decisions your attorney can make, or let them make all decisions on your behalf.

When you set up an LPA for financial decisions, ensure your attorney keeps meticulous accounts and separates their funds from yours. You have the right to request regular updates on expenditures and current balances. If you lose mental capacity, these details can be directed to your solicitor or a family member. This approach provides an added layer of protection for your assets.

DO NOT ASSUME

If you are married or in a civil partnership, you may assume that your spouse or Civil Partner will automatically be able to deal with your bank account and pensions and make decisions about your healthcare, if you lose the ability to do so. This is not the case. Without an LPA, they won’t have the authority to do so.

Why should I instruct a solicitor to create my Lasting Power of Attorney?

Getting your Lasting Power of Attorney wrong can be time-consuming and costly.  There are several reasons why it is recommended to use a legal professional when creating these documents.

• Acting as the Certificate Provider. This is the person who certifies to the Office of the Public Guardian that you are of sound mind. Your Solicitor can act as your Certificate Provider.
• Duty of confidentiality. Even if you can find a certificate provider, do you want friends or colleagues to know about your business?  Your solicitor has an absolute duty of confidentiality.
• Attention to detail. Registration of your LPA at the Office of the Public Guardian costs £82 per person per document.  If you draft your LPAs yourself and get them wrong, the Court may reject them meaning that you may have to start again, resulting in further costs. Mistakes are also likely to delay the registration and use of your LPAs by several weeks.
• Solicitors are regulated and insured. This gives you peace of mind that the job is done correctly.

Contact us

Please contact either Our wills & Probate department on 0114 698 1033 or email us at willenquiries@bestsolicitorsonline.co.uk.