What is a Power of Attorney and why do you need it?

Unless you've had to go through the process, you're unlikely to know what a Power of Attorney is, and even less likely to understand when you might need it.

Like wills, care preferences and death, it's one of the few topics that still remains a bit of a taboo and often people don't approach the subject until they or their relatives are seriously unwell.

This isn't the best strategy as you have to deal with the nuances of understanding what a Power of Attorney means, while also trying to manage and make decisions around the care of your loved one.

It's important to discuss issues like this, as well as what care they may want in later life, as soon as possible. This allows you and the rest of your family, as well as your loved one, the time to fully understand the process and have a conversation about what will be the best approach.

Having these discussions is especially important if your older relatives are in dementia care or at risk of having a stroke that could result in a situation where it's difficult for them to make coherent decisions.

So what is a Power of Attorney?

A Power of Attorney is a legal document where one individual (a donor) gives another person or multiple people (attorneys) the right to act on their behalf. This can be done on a temporary or permanent basis.

Why do I need a Power of Attorney?

You may never need it, but it can make it easier for close relatives or friends to make decisions about the financial and care arrangements of the donor.

It can be used for elderly people who become unwell to alleviate some of the stress of paying bills, but can also help those who experience a stroke or later-stage dementia where making a clear and informed decision is much more difficult for the donor.

What are the different types?

There are different types of Power of Attorney depending on how long you want it to last, when you want it to come into force, and what you want kind of decisions you want it to include.

When deciding on the duration of the document, you can put a temporary Ordinary Power of Attorney in place. For more long-term arrangements, there's the Lasting Power of Attorney (LPA). If you know someone who has taken out a Power of Attorney before 2007, they may have an Enduring Power of Attorney (EPA), but these have been largely replaced by the LPA.

These are still valid and can be transformed into a LPA or validated. To find out more, read the government guidance.

Lasting Power of Attorney (LPA)

There are two types of LPA: Property and Financial affairs, and Health and Welfare. As suggested, a Property and Financial affairs LPA allows attorneys to make decisions about important financial decisions, such as selling the donor's home, collecting a pension and benefits, and paying their bills.

Once registered with the Office of the Public Guardian, it can be used immediately, or held until it's needed.

A Health and Welfare LPA allows attorneys to make decisions about the donor's everyday life, such as whether they should go into a care home, what medical care they should receive, and any life-sustaining medical treatment. Unlike the Financial LPA, a Health and Welfare LPA can only be used when a donor is unable to make their own decisions.

You can create both at the same time and have both in place ready for a time when your relative wants to use them, such as in the event they have a stroke. What's important is that either can only be created when the donor still has full capacity, which is why setting them up sooner rather than later is key.

The laws are different in Northern Ireland and Scotland, though the process is similar.

Who can have the power of attorney?

Anyone can be a power of attorney on someone else’s behalf, as long as they are nominated by the donor. If there is more than one attorney, the donor can also decide how they want to divide the responsibility. Attorneys who are assigned 'jointly' must make all decisions together, while those who are 'jointly and severally' can use the Power of Attorney independently. This can be helpful if you have a number of children and want to place them all as attorneys, but have one that lives near you so it would be practical for them to be able to make independent decisions.

It’s possible to impose various restrictions and conditions on your attorneys, although these may be rejected if they are unworkable.

For more information on how to create a Power of Attorney, visit the Which website.