Wills & Estate Planning Fact Sheet
Power of Attorney (LPA)
There are essentially 4 types of Power of Attorney (PoA) currently available. You will find information about them further on. There is another type of Power of Attorney that was previously in use to the 30 September 2008. This is an Enduring Power of Attorney. If you made one of these prior to the first October 2008 then it is still valid so long as it was done correctly.
You can appoint one or more person to act as your Attorney. If you appoint more than one person, then you have to decide whether you want them to act independently or together. If they act independently that means that any one of them can deal with your affairs. If together then all your Attorneys have to sign any necessary documentation before it becomes valid. You can also specify that for some purposes they can act independently and for others they have to act together.
All types of PoA can be cancelled by you at any time as long as, as mentioned above, you still have the necessary mental capacity to do so. They all cease to have any effect at all upon your death.
This is a very wide-ranging power which gives your Attorneys the right to do anything that you can do yourself with all of your property and affairs. This type of PoA ceases to be valid and have any affect at all should you lose the necessary mental capacity to deal with your own affairs, so it can only be used up to that point. This type of PoA is currently less popular because it is so far reaching and it has no use at all if you become mentally incapable.
This is just like a General Power of Attorney but instead of allowing your Attorneys to deal with everything you specify a particular purpose or purposes. There are circumstances in which it can be quite useful, for example if you are going to spend some time out of the country but you are in the process of selling a house and you want someone to be able to deal with the sale and signing the documentation for you whilst you are away.
In our experience this is currently the most popular type of PoA. It is a document in which you appoint or more Attorneys who can make decisions and deal with your property and all financial affairs. The advantage of this type of power compared to a General Power of Attorney is that it continues to be valid even after you lose mental capacity. You can impose any restrictions or conditions that you would like. A restriction commonly imposed (but not in all cases) is that you do not wish it to become effective until you do lose the mental or physical ability to look after your affairs yourself. You can also include guidance to your Attorneys, for example on how you would like any money to be invested or what you would like to happen to your home if you had to move out. It is a very flexible document and can be adapted to suit your own individual needs.
This document would need to be registered at the Office of the Public Guardian before your Attorneys could use it. If you do not have a Lasting Power of Attorney and you do become mentally incapable of looking after your own affairs that may cause difficulties for your family and friends. It is likely that to be able to deal with these things for you they would have to apply to the Court of Protection which is a substantially more expensive process than the cost of setting up a Lasting Power of Attorney.
This type of document appoints Attorneys to make decisions about your health and welfare when you are not in a position to make your own decisions. This can include things like where you live, who visits you, and the type of care that you receive. Your Attorneys can only make these decisions when you lack the capacity to make the decisions yourself. It may well be that you are considered to have capacity to make some decisions about your personal health and welfare but not others.
You can give your Attorneys the power to give or refuse consent to life-sustaining treatment on your behalf. You can impose restrictions and conditions upon your Attorneys, and you can give them guidance about how they should make various decisions. Again, it is a very flexible document and can be tailored to meet your individual circumstances.
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