Not something we may want to spend too much time thinking about, but a reminder of some of the less well-known authorities provided by powers of attorney and an opportunity to dispel a few myths too.
The first point to note is that Powers of Attorney are not the same in the whole of the UK. In England and Wales we have Ordinary Power of Attorney, Enduring Power of Attorney and Lasting Power of Attorney; Lasting Power of Attorney are not available in Northern Ireland. In Scotland there is General Power of Attorney, Continuing Power of Attorney, Welfare Power of Attorney and Combined Power of Attorney
These comments relate to Lasting Power of Attorney in England & Wales; different rules and processes may apply for individuals who reside in Scotland and Northern Ireland.
A Which? survey of 2000 people in November 2021 suggested that 70% of people surveyed said they were healthy and so didn’t need an LPA. As at 23 June 2022, on average, the time being taken to register Lasting Power of Attorney (LPAs) in England & Wales with The Office of Public Guardian (OPG) was 82 days; this is more than twice the OPGs official target time. If nothing else, this is a reminder that the time to set up a Lasting Power of Attorney, is not at the point it’s needed!
Once a Power of Attorney is registered with OPG, you do not lose access to your financial accounts. The “Enduring” or “Lasting” title relates to the fact that the attorney continues to have the powers once capacity of the donor is lost. An Enduring Power of Attorney can only be registered when the donor has lost capacity; whereas a Lasting Power of Attorney can be registered with the OPG, and used, while the donor has mental capacity. However, it is worth mentioning that it is sometimes specifically stated within the document, that they do not apply until capacity is lost.
An attorney, or deputy, for property and financial affairs does not have the authority to give consent or make health and welfare decisions; Health & Welfare Lasting Powers of Attorney is required for this. However, an attorney holding a Lasting Power of Attorney (either Property and Affairs or Health and Welfare) should be able to access relevant medical records of the vulnerable adult. Attorneys need to be able to make decisions in the donor’s best interest as their legal representative; it is likely that an attorney will be unable to do so without access medical records. For anyone concerned about the GDPR implications of this, the body releasing the records must be sure that the third party making the request is entitled to act on behalf of the individual.
An attorney where there is a Lasting Power of Attorney for Property and Financial Affairs or an Enduring Power of Attorney in place, may also request sight of a donor’s will, unless the donor has expressly denied the right of attorneys to see their will. If you do have sight of the will as an attorney, you have a duty of confidentially; the contents of the will must not be revealed to anyone, unless the disclosure is authorised by the donor, or if it is in the donor’s interests to do so.
Remember, that just because someone may be unable to make certain decisions, it does not mean they are unable to make any decisions; part of the duties of an attorney is making sure the donor makes their own decisions if possible.
Upon the Donor’s death, the personal representatives then take over; the attorney must immediately stop using the power.
Helen Allen CFP™ APP Chartered FCSI FPFS
Chartered Financial Planner