John McNulty - Solicitor with Oxford Legal firm Turpin & Miller

There are two types of Power of Attorney.

The first is what is called an Ordinary Power of Attorney which is a legal document giving someone else authority to act on your behalf.

This remains valid only while you still have mental capacity. An Ordinary Power of Attorney remains a useful tool. It can be used by someone who is leaving the country for a period of time to allow someone to carry out any financial transactions on their behalf.

This could include using bank accounts or to buy and sell a property. It is possible to limit the Power of Attorney so that they can only deal with certain assets for example your bank account but not your home.

An Ordinary Power of Attorney can be revoked at any time.

The most usual Power of Attorney, however, is what is called a Lasting Power of Attorney (“LPA”).

This gives someone legal authority to make decisions on your behalf if either you are unable to in the future or you no longer wish to be able to make decisions for yourself. The person who is given the power of attorney known as the ‘attorney’ .

There are two different types of LPA. The first is the Property and Affairs LPA and the second is the Health and Welfare LPA. It is possible to make both types, or just one, and you can use the same attorney for both or you can have different attorneys.

The Property and Affairs LPA covers decisions regarding your finances and property and can include paying your bills, collecting your income and benefits or selling your property. Once again it is possible to restrict the powers and place conditions on what the attorney can do.

The Health and welfare LPA can give the attorney the power to decide to accept or refuse life sustaining treatment and make day- to-day decisions about your care including diet and even what you wear.

The important difference between the LPA and the ordinary power of attorney is that it has to be registered at the Office of the Public Guardian.

Once it is registered it can be used even while you have lost mental capacity to deal with those things yourself.

The Health and Welfare LPA can only be used once the form has been registered at the Office of Public Guardian and it will only take effect once the relative does not have the mental capacity to make the decisions regarding their own welfare.

The form of LPA will contain detailed provisions regarding what decisions are being allowed to the attorney but it is important to note that once the LPA is registered with the office of the public guardian and there is a reasonable belief that you do not have mental capacity to make decisions then the attorney can over-rule any previous advance decisions that you had made regarding your treatment.

If you wish to restrict this then this must be done on the Power of Attorney document itself.

It is usual to appoint two people as attorneys and it may also be advisable to instruct them to act jointly.

In other words they will have to agree on a course of action rather than act individually. It is usual to appoint a relative or a close friend. Attorneys have duties under the mental capacity act.

They have to act in your best interest, consider your past and present wishes, cannot take advantage of you to benefit themselves and must keep all of your money separate from their own.