What is Enduring Power Of Attorney?

Power of attorney is when a ‘donor’ gives a person (the attorney) power over their affairs in the event they can no longer make decisions for themselves.

It’s become more relevant in recent years too. Since 2015 the leading cause of death in the UK has been Dementia and once a person no longer has the capacity to make their own decisions they cannot donate power of attorney.

Enduring power of attorney grants a person the legal capacity to act on your behalf over your property and financial affairs. Enduring power of attorney was replaced in 2007 with lasting power of attorney and in the same way gives a person attorney over the financial and property affairs of the donor. A separate LPA can also be made to make decisions about a person’s healthcare and welfare too. These can only be used once a donor is considered as having lost capacity.

The main difference between an EPA and an LPA is that the latter must be registered with the Office of the Public Guardian before it can be activated. Consequently the Office of the Public Guardian would investigate you if there were a complaint and can file to have an attorney removed from their position.

The old style EPA can be used as soon as it is signed and is only required to be registered once the donor loses capacity. For this reason it was felt an EPA could be open to abuse by unscrupulous attorneys, thus the change in the law in 2007. An EPA made before 2007 would likely still be valid.

There is also a general power of attorney which grants an attorney the power to act, if for example the donor has been temporarily hospitalised. In this case the donor may have mental capacity, but lack the means to carry out their decisions. These are only for financial affairs and general power of attorney ends if a donor loses capacity.

The Role of an Attorney

The legal responsibilities of lasting power of attorney come under the Mental Capacity Act 2005.

The role of an attorney comes with responsibility so must be held by someone you trust. A solicitor arranging powers of attorney will need to be sure no-one’s being pressured into making the decision. An attorney is required to have made all possible effort to give the donor the chance to have made a decision for themselves. And any decisions made by the attorney must be in the donor’s best interests.

If you have a Lasting Power of Attorney, your legal responsibilities over the affairs of the donor ends with their death.

It’s not uncommon for power of attorney and an estate’s executor to be carried out by the same person, but they are different roles and having power of attorney doesn’t give you automatic rights to be the executor of a loved one’s will in the event of their death.

Responsibilities with Power of Attorney

If you have enduring power of attorney you’ll be responsible for a donor’s financial decisions and welfare. It’s dependent on their instructions, but might typically include:

  • money, bills and bank and building society accounts
  • their property and investments
  • any pensions and benefits

If you have lasting power of attorney you might be responsible for both financial and healthcare actions. They are two separate LPAs but typically include:

Financial:

  • managing a bank or building society account
  • paying bills
  • collecting benefits or pensions
  • selling your property

Healthcare:

  • day-to-day routines such as washing, dressing, eating
  • medical treatment
  • decisions about moving into a care home
  • Life-sustaining treatment

How You Stop Being an Attorney

A donor can remove you as an attorney, as long as they have capacity, or you can end it yourself. In any case, all power of attorney ends on the death of the donor.

Final Thoughts

Arranging lasting or enduring power of attorney can be crucial if a person loses capacity to make decisions for themselves. If a person loses capacity, doing simple things for them can be difficult without this in place.

If you need help in deciding if you need power of attorney you can get more help from the Office of the Public Guardian. Email them on customerservices@publicguardian.gov.uk.

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