What is a Power of Attorney?

In the UK, 18% of the population is now made up of over 65s — and as a result, more people than ever are finding themselves in the position of caring for elderly friends and relatives. Being a caregiver is often a difficult and complicated task, and sometimes bringing in professional care, or moving a loved one into residential care can be the best option for everyone involved.

In instances where the elderly person is struggling to make decisions for themselves, or resistant to the idea of full-time care, the Power of Attorney can help. Keep reading as we break down the definition of a Power of Attorney, the different types, and what role they play in determining the best course of action when it comes to care.

What is Mental Capacity?

To have “mental capacity” is to be fully cognizant in a way that enables you to make your own decisions, and comprehend their consequences. In line with legal guidelines in the UK, a person has mental capacity if they can do the following:

• Fully understand the relevant information, and the consequences of any decision they make.
• Remember the details for long enough to make that decision.
• Consider the different options and make a choice.
• Effectively communicate their decision in any way. This might be non-verbal, like a nod or shake of the head - it could just be by blinking.

It’s worth noting that an individual might have mental capacity regarding some issues, but not others — so it’s not a blanket yes or no. The list of diseases and conditions that can diminish mental capacity include dementia, brain injury, a stroke or learning disability: some of these may only impact mental capacity temporarily, while others may have a permanent impact.

To find out more about assessing mental capacity, head over to GOV.UK.

The Different Types of Power of Attorney

There are several different types of Power of Attorney in England and Wales, and the individual (often referred to as the “donor”) can set up more than one type if they wish. However, the three most common types of Power of Attorney are as follows:

Ordinary Power of Attorney

Simply put, an Ordinary Power of Attorney (or OPA) is able to make financial decisions on behalf of the donor, but their position is only valid while the donor has mental capacity.

An OPA is a useful option for someone who needs temporary help with their finances — for instance, because they’re housebound due to an injury, or going into respite care for a period. With this type of Power of Attorney, the donor can specify which financial decisions they’d like help with, and restrict them from making others.

Many people wrongly assume that if they’re unable to make financial decisions for themselves, their spouse or civil partner would automatically have this authority, but without an established Power of Attorney, this isn’t always the case.

Lasting Power of Attorney

What is a lasting Power of Attorney? In essence, there are two different forms — one for making financial decisions, and one for managing health. Notably, an LPA for Property and Financial Affairs can be used while the donor still has mental capacity, if that option is chosen at the point of set up, whereas an LPA for Health and Welfare0 can only act on behalf of a donor that is lacking mental capacity.

LPAs aren’t necessarily a permanent arrangement, and can be cancelled at any point providing the donor requests it while they’re still of sound mind.

LPA for Property and Financial Affairs

This type of LPA has the ability to make decisions relating to property and finances on behalf of the donor, but just as with an OPA, the donor can specify which decisions they’d like them to make. This usually includes things like:

• Mortgages, rent or other bills
• Expenses like repairs or debts
• Buying or selling property
• Income like a pension or benefits
• General financial management

It’s up to the donor when the LPA for Property and Financial Affairs starts — they can begin as soon as they’re registered if that’s what the donor would prefer — and the donor can make it clear they’d like the LPA to continue if they lose mental capacity.

There are several best practice rules for this type of LPA to follow. For example, they should ensure records of any financial or property-related decisions are kept and sent to a family member or solicitor, and they should keep any money belonging to the donor separate from their own.

LPA for Health and Welfare

By contrast, an LPA for Health and Welfare is responsible for any decisions pertaining to the donor’s personal wellbeing. This type of LPA may be relied upon to take charge of factors like:

• The contact the donor has with other people
• The medical care the donor receives
• Whether the donor should move into a care home, nursing home or similar residential facility

Unlike an OPA or an LPA for Property and Financial Affairs, an LPA for Health and Welfare can only begin to act on behalf of the donor once they lose their mental capacity to make decisions.

Enduring Power of Attorney

EPAs can only make decisions for the donor if they’re to do with property and money, but they were officially replaced with LPAs in October 2007.

This means that if an EPA was registered prior to this time, then they’re still a valid Power of Attorney today, but you can’t make a new EPA — you’d need to make an LPA for Property and Financial Affairs instead.

Can the Power of Attorney Place Someone in a Care Home?

Decision-making Authority

If you’re caring for a loved one and their needs are beginning to outweigh your abilities, you may be considering alternative care options. The best and first course of action is to discuss that decision with your friend or relative and get an understanding of their preferences. This can be more complex when the person you’re caring for is resistant to the idea of moving into a care home, or they’re unable to have a lucid conversation about it - for example, if they’re going through the stages of dementia .

In this situation, a registered LPA for Health and Welfare can help you decide whether moving them into a care home or nursing home is the right next step. If you decide you’d like the LPA to make that choice, then you’ll need to arrange for the mental capacity of your loved one to be assessed, to ensure the LPA’s actions are legitimate.

Benefits of Early Set-up

There are several key reasons to encourage the donor to set up Power of Attorney early in their illness, before mental capacity becomes uncertain. Early set-up gives friends and family the peace of mind that someone is registered to act in their loved one’s best interests, in terms of their medical care. Whereas with an OPA or LPA for Property and Financial Affairs, they don’t have to worry about handling bills and finances if the donor become unable to manage them.

Getting Power of Attorney organised early is especially relevant to donors who are living with a degenerative illness like Alzheimer’s disease, as it ensures they can choose someone to act on their behalf while they still have mental capacity.

At Danforth Care, we always recommend that Power of Attorney is set up for our residents before they move in, as they can be an invaluable help with financial concerns like selling property, arranging insurance and more.

How to Set Up Power of Attorney

Setting up Power of Attorney is a relatively straightforward process — firstly, the donor needs to be certain they’ve selected someone they can trust, and feel comfortable relying on to make their financial or medical decisions. If the donor is appointing more than one attorney, they should communicate whether they’d prefer them to work together, or separately.

Once the attorneys have been selected, the donor will need to:

• Fill out the Power of Attorney form for an LPA on GOV.UK.
• Register their Power of Attorney with the Office of Public Guardian (please note, this process can take up to 20 weeks to complete).
• Pay the Office of Public Guardian the necessary fee. Currently, each LPA costs £82 and you can pay by credit card, debit card or cheque.

You can get more specifics about the forms required and fees payable for Power of Attorney from the Office of the Public Guardian.

Key Takeaways About Power of Attorney

To recap, here are the key takeaways to remember about Power of Attorney in England and Wales:

• Ordinary Power of Attorney (OPA) — a trusted individual who is responsible for making financial decisions on behalf of a donor, often on a temporary basis. The donor must have mental capacity in order for the OPA’s actions to be valid.
• Lasting Power of Attorney (LPA) for Property and Financial Affairs — someone who is responsible for making decisions regarding property and finances for the donor. They can do this even when the donor no longer has mental capacity, providing this is specified.
• Lasting Power of Attorney (LPA) for Health and Welfare — a person responsible for any decisions regarding the donor’s health and wellbeing, like medical care and living situation. This LPA can only step in if the donor has lost mental capacity.
• Enduring Power of Attorney (EPA) — replaced by LPAs in October 2007, but any EPAs registered before then are valid.
• How to register a Power of Attorney — fill out the relevant forms on the GOV.UK website, then inform the Office of Public Guardian and pay the required fee.

At Danforth Care Homes, we are dedicated to providing the highest standard of care and support for our residents. If you’re considering care options for yourself or a loved one, we invite you to explore our luxury facilities and discover how we can make a difference. With an emphasis on quality of life, our homes offer a range of services and amenities designed to ensure comfort, security, and wellbeing.

To learn more about our your local care homes, request a brochure, book a viewing, or get in touch.