Power of Attorney

Making decisions on another's behalf

Many people will be familiar with the basic concept of a power of attorney being a written document which gives another person (a donee) the right to act on your behalf, either generally, or in specific matters. So if you were going to be unavailable for a period of time, perhaps going abroad on holiday or for work reasons, you might grant a power of attorney to a friend or your solicitor, so that they could sign specific documents or carry out other transactions on your behalf. It may also apply if, for example, you have difficulty with day-to-day tasks like going to the bank and need someone who is legally permitted to handle this kind of thing for you.

However, power of attorney documents are only valid for as long as the donor is mentally capable of making their own decisions. If you should become incapacitated and not able to make choices for yourself, the recipient’s power of attorney is automatically revoked. This is why there exist documents which go further and allow you to grant a power of attorney which remains in place if you should become unable to handle your own affairs.

This originally took the form of an Enduring Power of Attorney (EPA) which, once registered, allowed the donee to continue to act on your behalf, even if you had lost your mental capacity. Since October 2007, it is no longer possible to create an EPA. They have been replaced by Lasting Powers of Attorney (LPAs). However, Enduring Power of Attorney agreements signed by both parties before the 1st of October 2007 are still valid.

The newer LPAs serve a similar purpose to EPAs in that they remain valid as legal documents even if at some point in the future, you lose the mental capacity to make decisions for yourself, perhaps due to illness or injury. However, they offer a wider range of powers for the attorney in question and allow you to specify what you would prefer them to have control over.

To this end, there are two different types of Lasting Power of Attorney available to individuals wishing to make provisions for the future:

• Property and Affairs Lasting Power of Attorney allows you to choose someone you trust to make decisions about how to spend your money and the way your property and affairs are managed. Once registered, and unless you have put a restriction on it, this type of LPA can be used by your attorney(s) straight away.

• Personal Welfare Lasting Power of Attorney allows you to choose a person to make decisions on your behalf relating to your personal healthcare and welfare including decisions to give or refuse consent to treatment on your behalf and deciding where you live. These decisions can only be taken on your behalf when the LPA has been registered and you lack the capacity to make the necessary decision for yourself.

A Personal Welfare Lasting Power of Attorney is similar to the current Living Will. The difference between the two is that a Living Will allows you to specify, ahead of time, that you would not want to receive certain treatments in certain circumstances, and the decision will be taken as legally binding should this issue ever arise in the future. A Personal Welfare LPA grants another person legal jurisdiction to accept or refuse any treatments on your behalf, so offering more flexibility as long as you trust the individual involved to make the right decision for you.

Whenever an attorney makes a decision under an LPA, by law they must act in the best interests of the donor who has given them the power.

If you want to make plans for the future, creating a Lasting Power of Attorney will allow you to choose one or more people to act as decision-makers. An LPA can be made by anyone aged 18 or over but can only be used once it has been registered with the Office of the Public Guardian.

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