By Samantha Lang,
Legal Intern

What is a power of attorney?

A power of attorney is a legal document that allows one or more people, designated as ‘attorneys’, to make decisions for you on your behalf if:

  • you are unable to make them yourself in the future, otherwise known as ‘lacking mental capacity’, or 
  • you no longer want to make your own decisions.

Different types of power of attorney

There are different types of power of attorney which cover different decisions that can be made on your behalf.

Ordinary power of attorney (OPA)

This ordinary power of attorney is for property and financial affairs while you have mental capacity.

Lasting power of attorney (LPA)

Lasting power of attorney comes into effect if you lose mental capacity, and usually covers:

  • Property and financial affairs
  • Health and care decisions.

Power of attorney for property and financial affairs

What you can do as an attorney

An ordinary power of attorney can temporarily grant powers to attorneys to act for you in matters relating to the sale or purchase of property. For example, you may wish to appoint a solicitor or an estate agent as an attorney to sell your UK home if you have moved overseas.

If you are acting as a lasting power of attorney for property and financial affairs, you can usually:

  • Sell property (at market value)
  • Buy property 
  • Manage bank and building society accounts 
  • Make decisions about money, tax and bills 
  • Deal with investments 
  • Claim pensions and benefits on behalf of the donor
  • Purchase items needed for the donor
  • Make some gifts (although there are strict rules relating to this).

 

Buying and selling property as an attorney

As a property and financial affairs lasting power of attorney, you can sell the donor’s property or purchase new property on their behalf. If you decide to sell the donor’s home, you should discuss where the donor is going to live with their mental health and welfare attorney.

Instructing conveyancing solicitors 

You will need to present an original or certified copy of the lasting power of attorney to any conveyancing solicitor you instruct should you decide to buy new property or sell the donor’s property. 

Managing the donor’s bank account

When buying and selling property, you will need to have access to the donor’s bank account. Before managing their bank account, you will have to show the bank the original registered lasting power of attorney, or a certified copy.

You will also need proof of:

  • Your name
  • Your address 
  • The donor’s name or address if they are not the same as on the bank account.

 

Check if the lasting power of attorney is registered 

The lasting power of attorney must be registered with the Office of the Public Guardian before you can start acting as an attorney.

Check if there are any restrictions in the LPA

You should check that the donor has not restricted the use of the LPA, for example, to the managing of bank accounts only. The LPA must give you the authority to sell or purchase property on their behalf, otherwise you will need to obtain the Court of Protection’s permission to sell or buy property.

Check the donor’s will 

If the LPA gives you specific authority to obtain a copy of the donor’s will, you should check this to make sure you are not selling property that is to be left to someone in the donor’s will.

When you will need to take legal advice

You will need to get legal advice if you want to:

  • Sell the property below market value 
  • Buy the property yourself
  • Give the property to someone else.

 

Making Records 

It is important to keep a record of any sale or purchase of property you make and when you made them. You should also include details of who you asked for advice and any disagreements that arose. 

Making a power of attorney

Making an ordinary power of attorney

There is no specific way of setting up an ordinary power of attorney as there is no standard form to complete. If you want to set up an ordinary power of attorney, you may want to get advice from a solicitor as there is standard wording that must be used. 

An ordinary power of attorney need not be registered with the Office of the Public Guardian and can be used as soon as you sign it.

Making a lasting power of attorney

You must be 18 or over with capacity can set up a lasting power of attorney. You should contact the Office of the Public Guardian to get the relevant forms and information pack, which can be downloaded or filled out online. 

Choosing your attorney 

You can choose one or more people to be your attorney, who must be 18 or over with mental capacity.

If you appoint more than one person, you must decide if they make decisions:

  • Jointly and severally: attorneys can make decisions on their own or with other attorneys, or
  • Jointly: attorneys must agree on the decision.

 

Signing the forms

You must sign the forms before you send them off. They must also be signed by:

  • The attorneys
  • The witnesses 
  • A certificate provider, who confirms you are making the LPA by choice and you understand it. The provider must be:
  • A person you have known for 2 years prior to signing the certificate, or 
  • A professional person, such as a doctor or solicitor

 

Registering a lasting power of attorney

While you have mental capacity, you must register the lasting power of attorney with the Office of the Public Guardian before it can be used, which involves using a prescribed form and paying of fee of £82. 

The LPA cannot be used during the registration process, which can take up to 12 weeks. 

Notify people 

Before you register, you must send a form to notify people to all the people to notify you listed in the LPA. They will have three weeks to raise any concerns with the OPG.

Certifying a copy of your lasting power of attorney

You can confirm that a copy of your LPA is genuine by ‘certifying’ it if you have mental capacity. A certified copy can be used to register a lasting power of attorney, or prove an attorney’s permission to make decisions on your behalf. 

Copies of your LPA can be certified by a solicitor or a notary public.

CONTACT US FOR OUR EXPERT ADVICE

Woodcock Law & Notary Public is highly experienced in assisting with your power of attorney needs. Contact us if you need any assistance on 0800 049 2471 or email notary@woodcocknotarypublic.com.