What is Power of Attorney and what does it mean?
A Power of Attorney is a legal document. It allows you (the donor) to appoint others (the attorney) to take care of your affairs. This is in the event that you start to struggle physically or begin to lose mental capacity.
This is especially important if you’re in a relationship and seeking Power of Attorney for couples. It allows you or your partner to seamlessly take care of the other’s affairs without delay.
To set up a Power of Attorney, you must be:
- 18 years or older
- Of sound mind
Remember: a power of attorney document needs to be in place before you’re legally declared incapacitated. Make sure you plan ahead.
What are the types of Power of Attorney?
Today, there are two types of power of attorney:
- Lasting Power of Attorney
A Lasting Power of Attorney (LPA) gives the attorney control over the affairs of the donor. This is until it’s revoked or the donor passes away. It can take effect immediately after signing or be placed ‘on ice’ until you lose capacity. A lasting power of attorney needs to be registered with the Office of the Public Guardian.
- Ordinary Power of Attorney
An Ordinary Power of Attorney generally focuses on financial matters and specifies control for a limited amount of time. You can specify which decisions the attorney can make – for example, managing your financial affairs, but not your properties.
How does Lasting Power of Attorney work?
As a couple seeking Power of Attorney you’ll likely need an LPA. This lets you choose whether to give your partner control over your health and welfare, your property and finance, or both.
- Health and Welfare Attorney
A Health and Welfare Power of Attorney (Health and Welfare LPA) gives your partner the right to act on your behalf and make decisions on your behalf. This includes determining your treatments, dealing with medical care professionals, the type of care you receive, and even your diet. It also gives them the right to decide where you live, such as a care home.
Your partner can only take on this power after you’ve been declared mentally unfit. This is unlike a property and financial POA.
- Property and Financial Attorney
A Property and FInancial Power of Attorney lets your representative take control of your financial decisions. It allows your partner to use your money, property, and investments, and handle paying bills and taxes. You don’t need to be incapacitated for the LPA to take effect. For instance, an LPA can be in place if you live abroad and need someone to manage your assets and estate in this country.
Do married couples need a Power of Attorney?
So, you’re wondering, ‘Do I need Power of Attorney if I’m married?’. The answer is an emphatic yes.
While your partner is your next of kin, that won’t automatically grant them the right to manage your affairs.
It’s wise to set up Power of Attorney as a couple. This is whether you’re married, in a civil partnership, co-habiting, or in a long-term relationship.
Without this legal document, things can become complicated. Your property might not be able to be sold. You may find that your joint bank accounts are frozen until your partner gains control through the courts.
This can be a lengthy, costly, and exhausting process. One that could’ve been avoided had a POA been in place.
Think of the document declaring power of attorney for couples as a safety net. A Power of Attorney is an insurance policy that gives you both peace of mind.
How do you get Power of Attorney?
If you’re looking to apply for a Power of Attorney, there are four basic steps to follow:
- Choose your attorney
For couples, this should be a fairly straightforward choice. But you might also consider other relatives, friends, associates, or professionals that you strongly trust. Your selected attorney must be over 18 and be mentally capable to undertake the role.
You can appoint more than one attorney. You also need to decide whether they can make both independent and group decisions, known as ‘jointly and severally.' Alternatively, you can determine if decisions must be unanimously agreed, which is known as ‘jointly’.
It’s also possible to include a mixture of both in your POA. Doing so allows for some decisions to be made jointly, and others made jointly and severally.
In some cases, these are laid out by the donor. You may want to specify who manages what. Perhaps one attorney will look after your property, while all of them can take care of finances. Sometimes, it may fall on one person to manage the estate, with others helping as and when.
- Complete the required forms
The next step sees you complete two forms either online or by printing and posting from the gov.uk website. Given the complexities of setting up a POA, at this stage, it’s a good idea to take guidance from a solicitor.
You’ll need form LP1H to set up a health and welfare lasting power of attorney. To apply for a property and financial affairs attorney, use form LP1F.
Completing both these forms at the same time is a good idea. This is particularly true when setting up power of attorney for couples.
- Notify ‘named people’
An optional step: you may wish to include ‘people to notify’ when completing your lasting power of attorney forms. If so, you then need to send out an LP3 form to all those named.
If they object to the LPA, they can raise the issue with the Office of the Public Guardian. Anyone not named as an attorney can be notified, offering an extra layer of protection. ‘Named people’ may be more likely to object or call out tricky subjects that those with a vested interest (your attorneys) may not.
- Register your lasting power of attorney
You or your attorney will need to register your forms with the Office of the Public Guardian. This happens once your forms are completed and the relevant ‘named people’ have been notified. The forms can be posted or completed online. If your attorney takes this step, you’ll receive a notification.
Expect it to take around fifteen weeks plus to register your LPA.
Can a Power of Attorney change a will?
Whether a Power of Attorney can make changes to your will depends on your circumstances.
You must possess what’s known as testamentary capacity to alter a will.
In other words, you need to know what a will is, what your estate includes, and who might have a claim on it. You’ve probably heard the term ‘of sound mind and body.' Well, that’s more or less what determines your testamentary capacity.
A Power of Attorney comes into effect once you no longer have the mental facilities to make these changes. Your attorney may then decide to apply to the Court of Protection to change the will. They might do this if they believe it isn’t right. For example, if you made it a very long time ago or beneficiaries have since died (or you left no will at all).
However, the Court of Protection is under no obligation to rubber-stamp the application.
Is it better to use a solicitor for a power of attorney?
Whilst you don't need to consult a solicitor for a power of attorney, it's a good idea to anyway. You can fill out forms yourself, but mistakes happen. If you complete the forms incorrectly, your LPA could be rejected and you will have to pay a fee to reapply.
To avoid any mishaps and unwanted charges, it's always a good idea to use a solicitor when getting a power of attorney.
How long does it take to get a power of attorney?
Getting a Lasting Power of Attorney can take around 20-21 weeks, as stated by The Office of the Public Guardian. This only accounts for the time period from when you register your LPA forms.
If you're seeking support from a solicitor, it can take them under a week to create the forms for application. Though, when accounting for everyone's schedules, four to five weeks is a more likely estimate.
This timeframe accounts for applications without any mistakes. If you have to reapply for a power of attorney, it will be longer, as expected.
How much does Power of Attorney cost?
The average prices for Power of Attorney for couple range from between £100 to £1000.
But that doesn’t include solicitors’ fees. As mentioned previously, it's important to get legal help when setting up a power of attorney, due to its serious nature. This will help you gain peace of mind.
Most solicitors offer a flat fee for dealing with Power of Attorney. However, these will vary, so it’s a good idea to compare fees. Let us know a bit about you and we’ll instantly put you in touch with up to four competitively priced legal service providers to get the best deal.