Power of Attorney

The terminology in this context can be confusing. The ‘donor’ is the person who is authorising someone else to make decisions on their behalf, and the ‘donee’ is the person who is appointed to make the decisions on behalf of the donor. The donee is also sometimes referred to as the donor’s ‘Attorney’.

The difference between the Lasting Power of Attorney (“LPA”) documents relates to the types of decisions, and the actions which you can take, on behalf of the donor.

1. Property and Finance 

If you hold LPA for Property and Finance, you may be authorised to make decisions on behalf of the individual whilst they still have capacity as soon as the LPA has been registered. This is something which should be discussed with the individual, as you will require their consent whilst they still have capacity to make any decisions regarding their property or finances.

When acting as an Attorney with LPA for Property and Finance, you are able to make, or assist the individual to make, decisions regarding their:

  • Bills
  • Taxes
  • Bank accounts
  • Investments
  • Pensions
  • Benefits

Crucially, you may be involved in the decision of whether or not to sell the donor’s home. This may be necessary so as to pay for, for example, care home fees.

After taking a certified version of the LPA for Property and Finance document to the donor’s bank, you should be able to obtain access to the donor’s bank account. Each bank will have their own policy on the documents required for you to do this. 

It is important as an Attorney for Property and Finance that you do not mix the donor’s money with your own; you must keep it separate. You are able to use the donor’s money to buy items for them, for example food or clothing. It is very important that you do not use the donor’s money to benefit yourself – Local Authorities and the police are very astute to financial abuse claims in this context. You may risk your role as Attorney being revoked, and worse, prosecution. 

2. Health and Welfare 

If you hold LPA for Health and Welfare, you will be involved in making decisions regarding the individual’s healthcare and placement; for example if they require 24-hour care in a residential or nursing home environment. It is important that you make those professionals involved in the donor’s care aware of your LPA, since you will need to be consulted before any decision regarding the individual’s health or welfare can be made. This includes, for example, social services, doctors and care home management.

The sorts of decisions you might be excepted to make as an Attorney who holds LPA for Health and Welfare are decisions such as:

  • Where the individual is to reside if professionals (for example, doctors or social workers) state that the individual requires 24-hour care and cannot remain in their own home
  • What medical treatment the donor is to receive
  • The individual’s day-to-day routine, such as care planning if the individual resides in a care home

If the donor resides in a care home, you should be involved in their care planning as their Attorney. Every decision you make on the individual’s behalf should be made in their best interests; bearing in mind what that individual would have wanted were they able to make that decision for themselves.

Unlike LPA for Property and Finance, you will not be able to make decisions on the donor’s behalf regarding their health and welfare until they have lost mental capacity to be able to make those decisions for themselves. If the donor’s capacity is in doubt, it is important that you ask for a mental capacity assessment to be conducted by a professional, such as a social worker, nurse, doctor or psychiatrist

Fees

As of 1 April 2017, the fee for registering a LPA is £82, which is a fee set by the Office of the Public Guardian. This means that that the total fee for registering both LPA for Property and Finance and Health and Welfare is £164. 

However, these fees are means tested and the donor may quality for an exemption or a remission, dependent upon their financial status and income. The fee is reduced by 50% if the donor receives Universal Credit (known as a ‘Remission’). There are a number of factors which impact an individual’s entitlement to an exemption (which means that no fee is payable at all); primarily based upon whether the individual receives a ‘means-tested benefit’. To claim an exemption or remission, the LPA120A form needs to be competed, supported by evidence of the donor’s financial affairs.

Speak to one of our solicitors who will be able to assist you with the completion of these forms and advise you as to whether you are entitled to a remission or an exemption.

If you have any questions about any aspect of Powers of Attorney you should not hesitate to contact an expert member of our team today.  Our number is 01392 573599 or we can be contacted by email on office@emphia-law.co.uk