David lived on his own as his wife had died some years earlier. He’d recently had a stroke and felt that ‘things were getting a bit much’. He wanted to stay in his own home, but felt he needed a bit of help with his paperwork and money.
A few years earlier, he’d made a Lasting Power of Attorney, and his niece, Julia had agreed to act as his attorney should David need it.
So now that David wants help, what do they both need to do?
Have the Lasting Powers of Attorney been registered with the Office of the Public Guardian?
David had actually made two Lasting Powers of Attorney (LPAs): Health & Welfare and Property & Financial Affairs. They’d both been registered with the Office of the Public Guardian (OPG). This means that they were ready to be used.
Registration at the OPG takes around 20 weeks, so if you think you might need help, make this first step in preparation, or ask your solicitor for help.
Lasting Power of Attorney: Health & Welfare
A Health and Welfare LPA can only be used if the person, “the donor” has lost mental capacity. Losing capacity means the donor has lost the ability to understand, remember and process information relating to their health.
An appointed attorney will be able to make decisions on the donor’s behalf. This may include decisions about their medical treatment, what kind of support they receive, where they live (e.g. at home with support, or in a care home), who they have contact with and their social life, and whether the donor receives life-sustaining treatment.
David isn’t in this situation, therefore his Health & Welfare LPA will not be acted upon.
Lasting Power of Attorney: Property & Financial Affairs
The attorney for a Property & Financial Affairs LPA can assist the donor with property and financial decisions immediately, if the donor has granted this permission. That is, the donor can seek help, even if they have mental capacity. But this must be stated in section 5 of the Property & Financial Affairs LPA. Without this, the donor has not given permission, and so the attorney can only act once the donor has lost capacity.
An appointed attorney can manage the donor’s finances, including opening and closing bank accounts, and managing the donor’s pension. They can pay bills, buy or sell a property, including mortgaging a home. And they can make gifts on the donor’s behalf.
In our example, David stated that he wanted help before he lost mental capacity in section 5 of the LPA, therefore Julia can help him with all areas of finance and property.
How does the attorney ‘activate’ his power of attorney?
After the LPA has been registered, the donor and the attorney will receive a letter from the OPG with a Lasting Power of Attorney reference number and an activation key.
The attorney and donor can ‘activate’ the LPA online on the government’s website. This is not essential but may make it easier. Alternatively, an original or certified copy of the LPA can be registered with a bank or other institution to prove the attorney’s position. They may also ask for more information about the attorney’s identity to avoid identity fraud and make the system as secure as possible. Proof of ID may include a copy of a passport, driving licence, a utility bill or letter from HMRC.
The donor and attorney can decide whether bills and statements are sent to the attorney direct or whether they continue to be sent to the donor.
Transferring responsibility to the attorney from the donor can be time-consuming. Every bill or account may need attention. We have a created a Power of Attorney Checklist that might help.
The attorney has access to the donor’s financial affairs. What next?
It is the responsibility of the attorney to act in the donor’s best interests at all times, in accordance with the donor’s wishes and preferences.
An attorney should always try to help the donor make decisions for themselves where possible. But looking to the future, an attorney should discuss with the donor their plans for how they would like their money spent or how they want to be cared for should they become seriously ill or lose mental capacity.
If you have been appointed as an attorney together or ‘jointly’ with another person, you will need to make decisions for the donor together.
A final top tip
You might find it easier to redirect the donor’s post to the attorney using the Royal Mail Redirection Service. This is a chargeable service (at November 2024, a year’s redirection costs £84) and you can redirect for up to 4 years.
For further information, please contact Ian Cormack on 01535 613687 or email ian.cormack@awbclaw.co.uk.
12 November 2024
Helpful links
Gov UK: Registering your Lasting Power of Attorney
Lasting Powers of Attorney – the Long Read