Hodge Jones & Allen: Powers of Attorney

A Power of Attorney is a legal document where one person gives another person (the Attorney) authority to make certain decisions on his or her behalf.  The person appointing the Attorney is known as the Donor.  Powers of Attorney can be drawn up if the Donor has sufficient mental capacity to understand the nature of the deed but needs assistance with the management of their financial affairs, possibly due to a physical disability.

The authority given by general Power of Attorney comes to an end if the Donor loses mental capacity.  However, a Lasting Power of Attorney (LPA) will continue to be valid even after the Donor has lost mental capacity.

Anyone can make an LPA if they can understand what the LPA is and what the LPA will do.  They can also subsequently revoke the LPA but only while they are still mentally capable.

In addition to making a Will, many people draw up an LPA appointing a spouse or a family member to manage their financial affairs for them should they lose physical or mental capacity in the future.

LPAs are also drawn up with the intention that they should be used immediately.  This may be because the client has become too ill or frail to manage their own financial affairs. 

Types of LPAs

There are two types of LPAs:

• A property and affairs LPA, which allows your attorney authority to deal with your property and finances for you.
• A health and welfare LPA, which allows your attorney to make decisions about medical treatment, where you live and how you are cared for on your behalf, only when you lack mental capacity to do so yourself.  This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment

What happens if you have not made a LPA or EPA?

If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make decisions on your behalf.  This is both costly and time consuming.

Most care and treatment decisions can be made on your behalf without the need for a court application.  However, if you wish to avoid potential disputes, you can give a person(s) authority to make those decisions on your behalf by making a health and welfare LPA.

To discuss any issues relating to Powers of Attorney please contact Philippa Barton at Hodge Jones & Allen on 020 7874 8300 or email pbarton@hja.net