When it comes to Power of Attorney in the UK, it’s always best to plan ahead. This is because our mental capacity to make decisions can be affected at any time, be it gradually or suddenly. Once this happens, it’s not too late to seek assistance, but the whole process is a lot more difficult and time-consuming.
People often make the mistake of assuming that once a loved one loses their mental capacity, they can simply walk into a bank and make financial decisions on their behalf. This is not the case, even if the decisions relate to the care of their loved one.
Power of Attorney is an important document to organise, especially as the Alzheimer’s Society estimate that there will be more than one million people with dementia by 2021. Therefore, we’ve compiled this brief guide to Power of Attorney in the UK, so that you can understand how the process works and from where you can get assistance, should the need arise. For more information on Power of Attorney, take a look at the Co-Op Legal Services website.
What is Lasting Power of Attorney?
Lasting Power of Attorney is a legal document that allows a person to nominate (while they still have the mental capacity to do so), a trusted friend or relative to make decisions on their behalf should they lose the capacity to do so themselves.
A key point to remember is that Power of Attorney does not necessarily need to take effect as soon as it has been processed. Therefore, you don’t need to worry that you’ll immediately give up control. In fact, it’s much better to organise it while you still have the mental capacity to do so. You can stipulate that it can be used either before, or if and when, you lose mental capacity.
Your nominated representative should only ever make decisions on your behalf if you are unable to do so. For example, if you were to fall into a coma, your nominated representative would be able to make decisions for you. However, if you were to wake from that coma, your decision making powers return to you once more.
Why should you set up Lasting Power of Attorney?
Losing our mental capacity isn’t something that we can predict, but we can plan for it. This is why setting up Lasting Power of Attorney ahead of time is the most sensible option. If you lose your mental capacity and haven’t set up Lasting Power of Attorney already, your family will face a difficult and costly process. This, however, needn’t be the case.
Always remember, that you can only set up a Lasting Power of Attorney while you still have mental capacity. Once you no longer have mental capacity, it is too late. It is for this reason that people should act early and never think that it won’t happen to them.
Who decides if someone has lost their mental capacity?
This is a crucial aspect to understand as many people may think that they will always be in control of their decisions. However, that is often not the case.
The Mental Capacity Act 2005 says that a person has lost their mental capacity if they cannot do the following:
- Understand information given to them to make a particular decision
- Retain that information long enough to be able to make the decision
- Use or weigh up the information to make the decision
- Communicate their decision
Unfortunately we never know when this may happen to us or our loved ones so it’s important to be prepared. At least a terrible situation won’t be made worse by a period of uncertainty.
Decide whether to use a solicitor
A Lasting Power of Attorney complements your Will and is something that should be given equal importance. Most people employ the services of a solicitor to help with the setting up of their Power of Attorney, but people can also choose the DIY route; particularly if they’re legally and financially savvy.
However, it is a powerful legal document, so people with any doubts should seek professional help; especially if there are complex assets or businesses involved.
Make your application
If you’ve opted for the DIY route then everything you need to apply can be found online. Forms still need to be printed and signed, but it can ultimately streamline the process.
As soon as it has been registered, the Power of Attorney can take effect, unless you have stipulated that it is only for once you’ve lost your mental capacity. A ‘certificate provider’ also needs to sign the form. This is to verify that the person making the decision understands what they are doing and what Power of Attorney means. This can be someone close to the individual, like a friend or a professional such as a doctor or lawyer. However, it cannot be a family member either way.
Register your application
Your Power of Attorney can only be used once it has been registered and officially stamped by the Office of the Public Guardian (OPG). This process typically takes six to eight weeks. It is a good idea to send your forms to the OPG early, as they can sometimes spot mistakes, which can be amended while there is still time ad you still have mental capacity.