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Family Law

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Power of attorney

Power of attorney

As specialist Family lawyers in Guildford Surrey we are well placed to help you with any power of attorney issues, or questions, you may have.

What is power of attorney? This is the legal authority to act on behalf of another person in specified or all legal or financial matters. It is a legal document that allows someone else, of your choosing (see further under mental capacity below), to make decisions for you, or to act on your behalf, in the event of you being either no longer able or if you no longer wish to make your own decisions.

It could be that a temporary situation has arisen, for instance you have been taken into hospital unexpectedly and could need help with some of the everyday things you do, like paying bills etc. Or it could be you need to put some long term plans into place, for instance if you have been diagnosed with dementia and wish to put things into place in the event that you may lose the mental capacity to do so in the future.

What is mental capacity? Mental capacity basically means being able to understand and process information to make your own decisions. If someone is lacking mental capacity due to an illness or a disability (such as suffering a mental illness) they cannot do one of more of the following:
1. understand information given to them pertaining to a particular decision.
2. retain that information for long enough to be able to make a decision on that issue.
3. process and think about the information in order to make a decision on that issue.
4. be able to communicate their decision, (not necessarily orally).

Every single day we all make lots of decisions, both large ones and also small ones. We are able to make these decisions rationally and for ourselves, although we may sometimes need advice or further information to enable us to reach a decision. However, for some people their mental capacity to make these decisions can be temporarily, or even permanently affected for one of the following reasons:
If they have a learning disability they may be able to make decisions on minor things, for instance, what to wear, or what to eat etc. but they may need help on making major decisions, for instance arranging household insurance or other financial matters.
If someone suffers from mental health problems they may be absolutely fine making decisions, both minor and major, when they are well, but be unable to make the same decisions on days when they are not well. Their ability to make these decisions may well vary from day to day.
If it is someone with dementia they are more likely to be unable to make decisions as the illness progresses. Having dementia does not necessarily mean that the person cannot or is unable to make any decisions for themselves.

If you need more time to process, understand and/or to communicate decisions this does not mean that you lack mental capacity. If you are having difficulties in communicating a decision, then it is important that attempts are always made to help you to overcome those difficulties and to be able to both make and communicate the decisions for yourself.

There are 2 different types of power of attorney you can set up and you are able to set up more than one. As expert Family lawyers in Guildford Surrey we can discuss these with you fully to help you to make an informed choice, based on your own personal circumstances. Our testimonials speak for themselves.

The first type is 'Ordinary power of attorney' or OPA. This will cover decisions regarding your financial affairs and will be valid whilst you have mental capacity. It can be used for temporary cover, for instance an unexpected hospital stay, or if you find it difficult to get out and about, or even if you just want someone to act on your behalf.

The second type is 'Lasting power of attorney' or LPA. This would be used if you lose mental capacity or wish to no longer make decisions for yourself. An LPA will cover decisions regarding either your financial, or your health and care matters. People set up LPA's in advance, when they have the mental capacity to do so, to make sure they will be covered as they wish in the future, when they no longer have the mental capacity to do so.

You may have heard of an 'Enduring power of attorney' or EPA. These covered decisions regarding your financial affairs and your property and came into effect if you lost mental capacity. EPA's were replaced by LPA's in October 2007. However if you made and signed one prior to 1st October 2007 it should still be valid. As specialist Family lawyers Guildford Surrey we can answer any questions you may have relating to this subject.

An OPA will allow one or more persons to make financial decisions on your behalf.  They are usually set up for people who require someone:
To act on their behalf for a temporary period i.e. when you are in hospital or on holiday.
If you are finding it difficult to get out and about and wish for someone else to access your bank account for you.
Or if you wish for someone else to act on your behalf, whilst you have the mental capacity to supervise their actions.

You are able to put restrictions onto the power of attorney to allow them to only deal with certain aspects, i.e. they can deal only with your banking, but not decisions regarding your house etc. An OPA will only be valid whilst you have the mental capacity to be able to make your own decisions. If you wish for someone else to have that power when you can no longer do so, then you should consider setting up an LPA beforehand.

There are two types of LPA's you can apply for:
An LPA for financial decisions.
An LPA for health and care decisions.

An LPA for financial affairs can be used whilst you still have mental capacity, or it can be stated that it only comes into force if you lose the capacity. It will cover things like, paying bills, investing money, arranging repairs, buying and selling property. You can either restrict the types of decision your attorney can make, or allow them to make all decisions on your behalf. Your attorney must keep accounts of transactions they have taken for you and make sure their money is kept separate to yours. You can ask for updates of these transactions and they can also be sent to your solicitor and/or a family member if you lose mental capacity. This provides you with security and protection as your attorney is accountable for their transactions on your behalf.

An LPA for health and care decisions will only come into force once you have lost mental capacity. Your attorney will then be responsible for making decisions on where you should live, who you see, your medical care etc. You can also give them permission to make decisions about life-saving treatment.

There are many things to think about before setting up either of the powers of attorney available and here at Gregorian Emerson Family Law Solicitors we can help you with any questions you may have. As expert Family lawyers Guildford we have many years of experience in this field and can put your mind at rest and help you to sort out what is in your best interests.

Contact Gregorian Emerson Family Law Solicitors.

Based in Guildford and Cobham, Surrey and Central London, we can help you. If you have a family dispute that needs resolving, we are here to help and look forward to your call.

Please contact us on 01483 826 470

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