Fair warning – don’t leave it too late to set up a lasting power of attorney

We unfortunately hear of clients sometimes getting into difficulty because a power of attorney hasn’t been set up – either for themselves or a parent, partner or member of their family.

A power of attorney gives a trusted person the legal authority to make decisions on your behalf, if you’re no longer able to make them yourself, or perhaps you don’t want to.

A power of attorney can only be created while a person still has their mental capacity. Once they’ve lost this, through a sudden stroke or dementia for example, it’s too late. It could mean more lengthy and expensive legal procedures to get the authority to act on behalf of your family, compared to arranging a power of attorney. And if you’re trying to arrange urgent care or support or make critical decisions – it can be stressful for all involved.

Some people assume your next of kin or another close relative or friend can step in and take care of your affairs, but this isn’t necessarily the case. You need to legally appoint a power of attorney in case your health unfortunately were to take a turn for the worse and a sudden change meant you could no longer make important decisions. Appointing a power of attorney is as important as making sure you have a will in place.

What is a lasting power of attorney or LPA?

The terminology around power of attorney and processes are slightly different depending on where you live in the UK. Click here for more information if you live in Scotland or Northern Ireland.

There are two types of lasting power of attorney – you can choose one, or both of these:

1. Lasting power of attorney for property and financial affairs decisions

Covers decisions such as managing a bank account, paying bills, collecting benefits or a pension, organising home repairs or selling your home.

It can be used as soon as it’s registered.

Without a power of attorney in place, a financial adviser is unable to deal with a client’s finances, even if you pay for ongoing advice. And your family cannot step in either. They won’t be able to access your bank account or investments, to pay any bills for example, until the courts appoint a deputy, regardless of how urgently any money is needed.

2. Lasting power of attorney for health and care decisions

Covers decisions about your daily routine such as help with washing or dressing; medical care; moving into a care home and life-sustaining treatment.

It can only be used when you’re unable to make your own decisions.

Who should I choose?

Choose someone you trust such as a family member or friend. Or you could choose a professional such as a solicitor. The most important thing to consider when choosing a power of attorney is that it’s someone who you trust to make decisions that will have your best interests at heart.

You may want to consider how well they look after their own financial affairs and how well you know each other. It’s a good idea to talk about it with them and give them time to consider this carefully – what might be expected of them, and that they’re happy to make such decisions on your behalf.

Your power of attorney needs to be over 18 and there are some restrictions to be aware of, for example, an attorney for financial reasons cannot be bankrupt.

You can appoint more than one attorney, in fact as many as you want. However, you need to be clear about how they will make decisions – either ‘jointly’ which means making decisions together or ‘jointly and severally’, which means they may act together or separately, as they choose. You can specify what decisions they need to make and in what way, for example, any decisions around selling a house should be made jointly and for others they can be made separately.

How do I set up a power of attorney?

Setting up a power of attorney differs depending on where you live in the UK – we’ve included the links below. Essentially you need to select your attorney – you can have more than one.

You then need to complete the relevant application forms or you may be able to apply online. We recommend you get help completing these forms as any mistakes could mean your application is rejected and you need to pay a fee and reapply.

Lastly, you need to register your power of attorney with the relevant office. In England and Wales or Scotland this is the Office of the Public Guardian. In Northern Ireland it is the High Court (Office of Care and Protection).

You don’t have to use a solicitor, but you may find it useful if you’d like help with the process of setting up a power of attorney. We would always recommend getting help from a solicitor to set up a power of attorney. 

You can find lots of helpful information on each of the websites below including step-by-step guides and top tips to start conversations with your family and friends.

How long does it take to set up?

According to Gov.uk it could take up to 20 weeks to set up an LPA, if there are no mistakes in the application. They also suggest it may be quicker applying online.

When should I set it up?

We urge all clients to consider setting up a power of attorney – to protect themselves and their loved ones. You can set it up at any time. However, it’s best not to leave it too late as you never know when you’re going to need it and the process takes time. It could make all the difference, knowing your wishes are taken care of by people you trust to make the right decisions for you.

What happens if I don’t have a power of attorney?

Unfortunately, the Court of Protection may need to become involved if you aren’t able to make or communicate a certain decision. If you lose mental capacity an application needs to be made to the Court of Protection by someone who wishes to act on your behalf to be appointed as a ‘deputy’.  

This process can be costly and take a considerable amount of time compared to arranging a power of attorney, and most importantly, you have no control over who chooses to act for you.

A deputy has a similar role to a power of attorney and can only act within the authority set out by the Court, with a duty to act in good faith.

Take the first step today – book a free initial review

It’s so important – take the first step today – consider who will be your power of attorney before it’s too late.

If you have any questions, or would like more information, please speak to your financial adviser who can put you in touch with our specialist legal partners.

You can book a free initial review with our legal partners to discuss power of attorney, or anything else you’d like help with, such as wills. During your appointment they will provide you with a no obligation fixed fee quote. If you go ahead with the power of attorney or wills you will pay their fee.

Taking this first step now and arranging a power of attorney will help ensure your wishes are honoured and you’ve chosen who will make decisions about your property, financial affairs, health and care if you’re not able to. Speak to your adviser to arrange your initial legal review and take control of your future.

Power of attorney and will writing aren’t regulated by the Financial Conduct Authority.