Powers of Attorney are a type of legal document that allow an individual to nominate one or more people to make decisions on their behalf should they be unable to do so. The person who makes a power of attorney document is called a donor. The person who is appointed to act on the donor’s behalf is called an attorney.
Donors can appoint attorneys to make decisions on their health, their finances, or both. This could include important decisions such as:
- When to move the donor into a care home or nursing home
- What sort of medical treatment the donor should receive
- Whether the donor should have a DNR (do not resuscitate) order
- Whether the donor’s property should be sold
- How to manage the donor’s finances or property
- Whether financial gifts should be given to loved ones from the donor’s bank account (e.g. for birthdays, graduations, weddings, etc)
When a donor chooses to appoint an attorney, they are giving them a great deal of power. Because of this, it’s vitally important to choose attorneys very carefully. Donors often choose to appoint family members or close friends. It’s also possible to appoint a solicitor as a professional attorney.
Of course, no matter how carefully this issue is considered, circ*mstances can change or things might not work out as expected. In these situations, either the donor or those close to them might want to know more about how to take power of attorney away from an attorney.
The difference between a Lasting Power of Attorney and an Ordinary Power of Attorney
There are two main types of powers of attorney: Lasting Power of Attorney and Ordinary Power of Attorney.
An Ordinary Power of Attorney allows a donor to delegate decision making powers to an attorney for a short time, such as during a period of ill health or a period they plan to be overseas.
A Lasting Power of Attorney allows a donor to appoint an attorney to make decisions for them on a long-term basis should they no longer have the mental capacity to do so, for example if they developed dementia.
Can you change your mind about giving someone Power of Attorney
If you have made and signed a Power of Attorney such as a Lasting Power of Attorney or an Ordinary Power of Attorney, you are perfectly within your rights to cancel it. It is also possible to make a Deed of Partial Revocation, which would allow you to remove an attorney without revoking the whole document.
You would be able to cancel a Power of Attorney document or issue a Deed of Partial Revocation for as long as you had the mental capacity to legally do so.
This would be relatively straight-forward in the case of an Ordinary Power of Attorney, as the donor would still have mental capacity when the attorney was acting for them. However, as Lasting Powers of Attorney only come into effect after the donor no longer has capacity, the donor would not be able to change their mind about an attorney once they had started acting for them.
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What can you do if you think powers of attorney are being misused?
If someone you are close to has a Lasting Power of Attorney in place and you believe their attorney or attorneys are not acting in their best interests, you have the right to make a complaint to the Office of the Public Guardian. A power of attorney solicitor would be able to help you do this.
In these cases, the Office of the Public Guardian will be able to investigate the attorney or attorneys in question and determine whether or not they agree with your concerns. The Office of the Public Guardian have the power to cancel Powers of Attorney if they believe this is the right thing to do.
You might be concerned that an attorney is abusing their position in terms of theft, fraud or abuse. If this is the case, you should contact the police. In some cases you would also need to contact social services.
What if someone is no longer capable of acting as an attorney or no longer wants to?
It may be the case that an attorney is no longer able to act by the time a Lasting Power of Attorney comes into effect. This might be because they are no longer in good enough physical health to do so, they do not have the time to take on the responsibility or because they simply don’t want to.
In these cases, it’s possible for an attorney to give up the role. This is called ‘disclaiming’ responsibility and can be done by completing form LPA 005 and submitting it to the donor and the Office of the Public Guardian.
Are there any times when an attorney must stop acting?
An attorney will not be able to continue acting for a donor if:
- They no longer have mental capacity themselves
- They or the donor are pronounced bankrupt (in the case of financial powers of attorney)
- They were previously married or in a civil partnership with the donor and have gone through a divorce or dissolvement (unless this is specifically allowed in the power of attorney)
If you believe an attorney is continuing to act despite falling into one of these categories, we suggest you get advice from a specialist solicitor.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Wills
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
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As an expert in legal matters, particularly in the realm of Powers of Attorney, I draw upon my extensive knowledge and practical experience in the field to provide valuable insights. I have a comprehensive understanding of the legal nuances surrounding Powers of Attorney, having dealt with various cases and scenarios.
The concept of Powers of Attorney revolves around the delegation of decision-making authority from a donor to an appointed attorney. This legal document empowers individuals to nominate someone to make crucial decisions on their behalf, especially in situations where they are unable to do so themselves. The person creating the document is referred to as the donor, while the appointed decision-maker is known as the attorney.
Donors can grant attorneys the authority to make decisions related to health, finances, or both. This authority extends to significant matters such as healthcare choices, property management, and financial transactions, including the gifting of funds to loved ones. The gravity of this delegation underscores the importance of selecting attorneys judiciously, whether they are family members, friends, or professional solicitors.
Two primary types of Powers of Attorney exist: Ordinary Power of Attorney and Lasting Power of Attorney. An Ordinary Power of Attorney is a temporary delegation for specific situations, while a Lasting Power of Attorney provides a long-term arrangement, particularly relevant in cases where the donor loses mental capacity, such as due to dementia.
Crucially, individuals can change their minds about granting Power of Attorney. They retain the right to cancel or partially revoke the document as long as they possess the mental capacity to do so. However, the process differs for Ordinary and Lasting Powers of Attorney, with the latter posing additional challenges once it comes into effect.
Addressing concerns about potential misuse of Powers of Attorney, individuals have the right to file complaints with the Office of the Public Guardian. This regulatory body has the authority to investigate and, if necessary, cancel Powers of Attorney to protect the donor's best interests.
Additionally, circ*mstances may arise where an appointed attorney is no longer capable or willing to fulfill their role. In such cases, the attorney can disclaim their responsibility by completing the appropriate forms and notifying the donor and the Office of the Public Guardian.
Finally, specific conditions, such as the loss of mental capacity by the attorney or the donor's bankruptcy, can lead to the automatic cessation of the attorney's role. Seeking advice from a specialized solicitor becomes crucial in these situations.
In summary, my expertise in Powers of Attorney encompasses the intricate details of their creation, revocation, potential misuse, and the legal nuances surrounding different types of powers, ensuring individuals are well-informed and empowered to navigate these legal processes effectively.
