Who can advise on power of attorney? Please

Hello @carpfishing,
As you’re probably aware, having a Power of Attorney in place can often make things easier to manage, however, there can be alternatives and so we often find it best to give guidance in this area over the phone as we can ask more questions and tailor the guidance for you.
If you are able to, you can contact us on 0808 808 0000 and select option 1 then 2 and then 1 to get through to one of the Financial Guides on the line. We are here from 8am until 6pm from Monday until Friday.
In the meantime, I’ve included some information below which you might find helpful but it’s important to know that this only applies to England or Wales (we have separate guidance outside of England and Wales, so please let me know if you are in Scotland or Northern Ireland and I will be happy to provide some more bespoke information).

Power of Attorney (England and Wales)

A Power of Attorney (POA) is a legal arrangement which allows an individual (the donor) to give another person or persons (the attorney) the power to take over their affairs.

The donor must have the mental capacity to make their own decisions when setting up a POA.

There are two types of Lasting Power of Attorney (LPA) and it’s possible to use either, or both:

• Property and Financial Affairs LPA This gives an attorney the power to manage all of the donor’s financial affairs including buying and selling property and investments, running bank and savings accounts and managing tax affairs.

This type of LPA can be used as soon as it’s registered, with the donor’s permission, even if the donor can still make their own decisions.

• Health and Personal Welfare LPA This gives an attorney the power to make decisions about the individual’s welfare, for example; medical treatment and whether they should go into a care home or hospice. This can be a general power covering all decisions or can be restricted to specific areas. In addition to this, the donor may make an Advance Decision – sometimes called a ‘living will’ – this gives legally enforceable instructions about the circumstances in which they would, or would not, wish to receive life-prolonging treatment.

This type of LPA can only be used when the donor can no longer make their own decisions.

A Certificate Provider’s statement needs to be included with the LPA application. This confirms that the donor understands the implications of making the LPA and also that they’re under no duress from another person. Before signing, the certificate provider will discuss this with the donor without the proposed attorney/s present.

The certificate provider must have known the donor for at least two years. If there’s no-one who fits this description, a professional may sign instead. These professionals might include doctors, solicitors, or registered social workers.

An LPA can’t be used until it has been registered with the Office of the Public Guardian (OPG) for which there is a fee of, currently, £82 (although there are exemptions for those in receipt of certain benefits or on a reduced income). This process can take up to 20 weeks (as of January 2024). If it’s urgent OPG can prioritise the registration of the LPA, this can usually be done in the following scenarios:

• The donor is in hospital.
• The donor is terminally ill or in end-of-life care.
• The LPA is needed to complete a property sale.
• The LPA is needed to pay urgent care fees.

An LPA can be cancelled at any time whilst the donor still has mental capacity. If mental capacity is lost, it can only be cancelled with the agreement of a court. The arrangement also stops if the donor dies.

Contact the Office of the Public Guardian for more information:

www.justice.gov.uk/about/opg

Phone number: 0300 456 0300 - Phone lines are open Monday - Friday 9:00am - 5pm (Except Wednesday 10am - 5pm)

The forms can be printed off, posted or filled in online. To do so visit the website below:

www.gov.uk/.../make-lasting-power

It may help to use a solicitor in order to ensure that the forms are completed correctly, although this isn’t compulsory.

To find a local solicitor visit: www.lawsociety.org.uk/choosingandusing/findasolicitor.law

A Temporary Arrangement

If the donor only wishes to give someone else power to manage their affairs for a set period, for example whilst they are in hospital or away on a long holiday, they can do this using an ordinary power of attorney.

It can be a general power where the attorney has power over all of the individual’s property and finances. Or, it can be a specific power to deal with just one aspect, such as running a bank account or selling a property. Depending on the situation, it may be appropriate to set up a third-party mandate for a bank account (see below) or appoint an agent to collect state benefits.

An ordinary power of attorney doesn’t have to be registered with any official authority, but it does have to be written in a certain way. It stops when the donor cancels it or loses mental capacity.

Standard wording is needed for an ordinary power of attorney. Either contact a solicitor or buy an ordinary power of attorney document from a law stationer (some high street stationers also stock them) or arrange for a solicitor to prepare one.

Once again, please see www.lawsociety.org.uk/choosingandusing/findasolicitor.law for a solicitor in your local area.

Third Party Mandate

An alternative short term measure for accessing someone else’s account is a third party mandate.

A third party mandate is where the account holder arranges with their bank to accept instructions made on their behalf by someone else. The account remains in the account holder’s name, but a third party will be able to make withdrawals, write cheques and carry out other transactions in their name.

It’s important to remember though, if the account holder loses mental capacity, the bank must be told and the mandate will stop. Also, if the account holder dies, the mandate will no longer be valid.

Not all banks allow third party mandates so check with the bank concerned first.

Joint bank account

Another alternative for accessing someone else’s account is to make it a ‘joint account’.

A joint account is one which is held in joint names with someone else. A joint account can be arranged by adding a second person to an existing single account, or by opening a new joint account.

The owners of the account would then become the joint owners of the money in the account and would be able to write cheques, set up standing orders and direct debits, make payments and access funds. If either person died, the surviving account holder would then automatically inherit the whole account.

It’s essential that the account holder can completely trust the person helping them to run the account. If a joint account is set up so that someone can help with the payment of bills and other expenses, think about keeping a separate personal account for money that isn’t used for bills.

I hope you find this information helpful, but please give us a call if you need anything further and we’ll be happy to help.

David R

Macmillan Staff