Anyone who is aged 18 or over who has the mental ability to make decisions can arrange for someone else to make these decisions for them in the future. This legal authority is called “power of attorney”. The person who is given power of attorney is known as the “attorney” and must also be at least 18 years of age.
There are different types of power of attorney. In this article I am going to mention enduring powers of attorney and lasting powers of attorney. An enduring power of attorney deals only with property and affairs which includes financial affairs. It is no longer possible to create an enduring power of attorney but one created before 1 October 2007 remains valid. There are 2 types of lasting powers of attorney one for personal welfare and one for property and affairs.
Lasting powers of attorney can only be used by an attorney if they have been registered with the office of the public guardian. An enduring power of attorney created before 1 October 2007 can be used before registration with the office of the public guardian but it must be registered if the person making the enduring power of attorney (the donor) is losing or has lost their mental capacity. Either the donor or the attorney can apply to register a power of attorney.
As an attorney you have a duty of care to the donor. You must carry out the donor’s instructions; you may not take advantage of your position nor benefit yourself; you must act in good faith; and respect confidentiality.
Knowing whether a decision is in the best interest of the donor is difficult. Before making a decision for the donor check that the donor does lack capacity to make that decision himself. Could the decision be delayed until the donor recovers capacity? What are or were the donor’s feeling wishes, beliefs, values and other factors that he would consider if able. Does the power of attorney document set out any guidance for you from the donor? There is a general presumption in favour of following the donor’s wishes unless it is irrational, irresponsible or impracticable. Have you consulted any one named by the donor to be consulted; any person or carer interested in the donor’s welfare; or any other attorney named by the donor.
Under a property and affairs power of attorney you must manage the donor’s finances in their best interests; you must keep them separate from your own; you must keep accounts of the donor’s assets, income, spending and outgoings. You can buy or sell property on the donor’s behalf if it is in their best interests. Contact the office of the public guardian if any sale is below market value; if you want to buy any property yourself; or if you want to give the property to someone else.
As a personal welfare attorney you can make decisions about the donor’s daily routine, medical care, and living arrangements. You can only make these decisions if the donor has lost capacity to make them himself.
If you would like any advice or help with powers of attorney then e mail enquiry@dixonstewart.com or telephone one of our offices
