Reviewed by James Badcock
Have you considered what would happen if your parents were unable to manage their finances or make decisions for themselves due to illness or incapacity?
Sadly, dementia is on the increase among the older population and as they age many elderly people struggle to manage not just their financial affairs, but matters concerning their health and care too. There may also be times when your parent needs you to do something for them even though they still have full mental capacity, but without the right legal paperwork you won’t be able to.
While you may think being an elderly person’s next of kin gives you the right to deal with their personal matters legally it doesn’t – even if they’re losing their mental capacity. If you’re the elderly person’s spouse, daughter, son or grandchild, you must have power of attorney if they want you to manage their affairs for them. Without a correctly registered power of attorney you won’t legally be able to assist your elderly relative with banking or paying bills, make decisions on their behalf about what care they need or obtain equity from or sell their property to pay for their care.
According to a report published in 2022 by Canada Life, the Ministry of Justice states that around 78% of the UK’s population don’t have any kind of power of attorney in place – even though it’s recommended for anyone over the age of eighteen to have one. Once you’ve read through this article, you’ll understand exactly what a power of attorney is and just how important it is to not leave getting one until the last minute. On a side note, once you’re fully in the know, you may also consider putting in place powers of attorney for yourself as well as your elderly parent. It would be a wise decision if you do.
What is a lasting power of attorney?
Everyone has the right to make their own decisions whether they’re concerning money or health matters. No one can do it for them unless they specifically want them to and put the right sort of paperwork in place that backs up that choice. And it has to be done before they no longer have the mental capability to do it for themselves. That paperwork is a lasting power of attorney which has to be registered with the Office of the Public Guardian. A lasting power of attorney, which continues to be valid after a person has lost mental capacity, is different from an ordinary power of attorney, which does not.
Ordinary power of attorney
An ordinary power of attorney (OPA), also known as a general power of attorney, gives the person named on the document as the attorney permission to deal with someone else’s financial matters on a temporary basis. The person in need of the temporary assistance must have full mental capacity for the OPA to be used.
An OPA is most frequently used when someone needs assistance because they’re having trouble carrying out their own financial matters. For example, they may have mobility problems. It can also be used when someone is expecting to have a lengthy hospital stay or is going to be housebound during their recuperation period. Occasionally a person will create an OPA so someone else can take care of their financial matters if they’re going on holiday or are planning on living abroad for a few months of the year.
It’s very important that the person creating the OPA states the specific tasks they want their attorney to conduct for them. But remember, the OPA is for temporary financial matters only and does not permit the po attorney to make decisions about someone’s healthcare. Should the person who created the OPA lose full mental capacity then the OPA will no longer be valid.
Lasting power of attorney
A lasting power of attorney (LPA) differs from an OPA in that it allows the person granted power of attorney the right to make decisions about financial matters or healthcare matters when the person who created the LPA, often called the donor, no longer has the mental capacity to do so.
LPA’s for financial affairs are separate to LPA’s for health and care matters. If you haven’t already, ou it is critical to set up both as soon as possible if your elderly relative has been diagnosed with dementia or any other degenerative condition that will eventually affect their decision-making capabilities.
Lasting power of attorney for health and welfare
With this type of LPA a donor gives an attorney the power to make decisions about their health and welfare when they no longer have the mental capacity to do it for themselves and not before.
Subject to any decisions the donor has made in a living will (also known as an advance decision), the attorney is able to make decisions for the donor about:
- What medical care the donor receives including signing consent forms if they need an operation or treatment
- When and if they need professional care in the home to make life more comfortable
- When and if the donor needs to go into a residential home.
When the donor has a living will (advance decision) stating their preferred treatments or care then the attorney must adhere to the donor’s wishes unless it’s no longer in their best interest. If the statements in the living will and the LPA are conflicting or no longer in the donor’s best interests then the attorney may need to apply to the Court of Protection to be able to override them.
A lasting power of attorney for health and welfare does not give the named attorney the right to spend the donor’s money or deal with financial matters for the donor. Even if the money to be spent is for something as trivial as a haircut, the expenditure must be agreed with the person who holds the financial power of attorney unless you are one and the same.
Lasting power of attorney for property and financial affairs
The named attorney on an LPA for property and financial affairs can assist the donor in making decisions about financial matters or, if the donor no longer has the mental capacity, can make decisions for them. Unless otherwise stated on the LPA, those matters could include:
- Paying bills
- Paying for shopping or allocating a budget to who is doing the shopping
- Collecting pensions and benefits for the donor
- Moving money between the donor’s accounts
- Paying for care
- Selling their property to pay for care
As an attorney for someone’s financial affairs you will be expected to keep detailed records of where and what the donor’s money has been spent on. You will also be legally responsible if there are any discrepancies in the accounts you keep.
As a named attorney on an LPA for property and financial affairs you cannot make decisions about the donor’s health or welfare unless you are their named attorney on an LPA for health and welfare.
How do I get an LPA for my elderly parent?
The first thing you need to remember is that it is your parent who needs to create the lasting power of attorney. However you can discuss the subject with them and assist them through the process of registering an LPA.
Start by explaining the benefits of being prepared for any eventuality should they become ill, have an accident and lose their mobility or be unfortunate enough to develop dementia or Alzheimer’s. By having LPAs in place they can be more confident that their financial affairs and their health and welfare will be dealt with in the way they would want them to be rather than how a stranger decides they should.
A lasting power of attorney can only be put in place by your parent while they have full mental capacity. You cannot insist they have one. It is their choice entirely. If the Office of the Public Guardian thinks you have coerced your relative into having an LPA they will visit your relative, assess the situation and if you did force them into having an LPA, there could be serious consequences.
You may find that your relative will want to get some professional advice and that’s not a bad thing especially if their personal business is complicated. They may want to speak with a solicitor or they can consult with a financial advisor at the nearest Citizens Advice Bureau free of charge.
As a further encouragement you might want to mention the length of time it takes for the Office of the Public Guardian to register LPAs. At present it can take anywhere up to five months or longer for the process to be completed. While steps are in place to deal with the backlog of registrations caused by Covid, it’s not expected that the procedure will get quicker any time soon.
If your relative decides they want to put an LPA in place then they will need to:
- Download the corresponding power of attorney form or forms from the Gov.uk website, request them to be sent by post by calling 0300 456 03000 or complete the form online, but they still need to be printed for submission purposes
- Complete the forms if they weren’t completed online
- Have the form signed by someone such as a doctor, nurse or solicitor
- Have the form signed by the appointed attorney
- Return the completed form along with the registration fee to the Office of the Public Guardian
An LPA for property and financial affairs and an LPA for health and welfare have to be registered separately. The fee for one registration is £82 so if they’re registering both types of LPA the cost will be £164. If your relative has an income of less than £12,000 per year they may be entitled to a reduced registration fee. They will be able to download a form to apply for a reduced registration fee from the Gov.uk website.
Is an enduring power of attorney the same as an LPA?
Once you broach the subject of power of attorney with your parent you may find they already have something called an enduring power of attorney (EPA). While LPAs replaced EPAs in 2007, an EPA will still be valid as long as they, the donor, has full mental capacity. You may find though that your parent’s wishes and needs have changed since the EPA was made so it’s a good idea to ask your parent to cancel it and make a new, updated LPA that suits their current situation better.
If your parent has an EPA, but no longer has full mental capacity, you must register the EPA with the Office of the Public Guardian before you can legally act as their attorney even if you’re named on the document.
Getting a lasting power of attorney may seem a complicated process and it can be quite taxing and tedious. But the peace of mind your parents will have once it’s done and they know their financial affairs and health and wellbeing will be looked after how they want them to be will make it all worthwhile.
If they don’t put the LPAs in place while they’re able then, if they do lose their mental capabilities, it will be necessary to apply to the Court of Protection for someone to be appointed to manage their affairs. This is a costly process and it may be a stranger who is appointed to decide what care they get and how their money is spent. That’s something that’s best avoided, so as difficult a subject as it is, it’s something that’s best dealt with and sooner rather than later.
- Do you need a lawyer to get a power of attorney in the UK?
You don’t need a lawyer or solicitor to get a lasting power of attorney in the UK, but it’s recommended to get professional help and advice if the donor’s finances or care needs are complicated.
- What is the cost of power of attorney in the UK?
Registering a power of attorney with the Office of the Public Guardian costs £82
- What is the difference between a lasting power of attorney and an enduring power of attorney?
An EPA can only cover someone’s property and financial affairs. LPAs replaced EPAs in 2007, although EPAs made before they were replaced are still valid.
- Can an enduring power of attorney be used for health and welfare?
To a certain degree, yes, but it doesn’t enable the attorney to make decisions about the donor’s medical care.
- How long does it take to get a power of attorney?
It can take anywhere up to five months or more to register a power of attorney.
- Can my parents revoke or change their power of attorney at any time?
A power of attorney can be changed or revoked by contacting the Office of the Public Guardian using the procedure outlined on their website.
- What safeguards are in place to prevent misuse of power of attorney?
The Office of the Public Guardian has strict protocols in place for safeguarding donors. If they receive a report about any suspected misconduct from an attorney it is investigated or if needed, the case may be passed to the relevant authority such as the police or the donor’s local council safeguarding team to look into.
Disclaimer:The information provided in this article is for informational purposes only and is not intended as legal advice. Laws and regulations regarding Lasting Powers of Attorney in the United Kingdom may vary over time and across jurisdictions. It is recommended that readers consult with a qualified legal professional and check the official government website to obtain up-to-date advice tailored to their specific situation.