A post about why you should consider granting a Power of Attorney and how to go about it.
If you have not already done so, you should address the issue of what will happen if you, or someone close to you, loses capacity to manage their own health decisions and financial affairs.
As I recorded in my sister blog in an earlier post, loss of capacity may arise with little or no warning. One day you are in charge of your affairs – the next you need all the support and assistance you can get.
Many people think that executing a Power of Attorney (POA) will be sufficient. As both a lawyer and an attorney I can tell you that it is not. The POA is the preliminary step, and in this post, I will guide you through some of the rest – the challenges that can arise should you not prepare well for the day that you may need to hand over control to others.
Why should I make a POA?
Whilst the purpose of this post is not to persuade you (or your relative) to make a POA, it is right to highlight the disadvantages of not having done so.
If you cannot make important, life-affecting decisions for yourself, someone else may have to make them for you. The bottom line is that many such decisions are made in a multi-agency process, often led by a risk-aversive practice nurse and social worker who are unlikely to know your detailed background, priorities or wishes. How much better to have these choices considered in light of your likely preferences?
Preparing the POA
The process of preparing POAs is not as complicated as many may expect. You do not need a lawyer. Here is the excellent government web site that will guide you through the process easily at no charge. Of equal importance, it sets out how you may change or revoke a POA that has been registered with the Office of the Public Guardian (OPG).
Choice of attorneys
In preparing your POA you should consider three key matters: how many attorneys do you wish to appoint; who will be your attorneys; and must they act jointly, or can they exercise their power independently should the need arise?
Former Court of Protection judge, Denzil Lush wrote a realistically critical article concerning the dangers that may arise from granting POAs, saying that after adjudicating in 6,000 cases, he would never himself grant such a power. I note that his concerns focus around possible family division arising from an unaccounted exercise of these powers, rather than from the powers themselves. Like all judges, Lush was exposed to those occasions when things went badly wrong, rather than the considerable number of examples where the POA was a lifeline to smooth management of a donor’s affairs.
But Lush’s comments highlight the very real importance of attorney selection. For some, a son, daughter or other close caring relative is the obvious choice. But it is not necessarily the most appropriate option for others. Following Denzil’s lead, if in doubt, do not grant the power and leave the matter to the Court of Protection to appoint a ‘deputy’. That said, do bear in mind that proceeding through the Court of Protection will result in delay, is not a cheap, simple or a speedy option, and the powers granted will be more cumbersome for the appointed deputy than for your personal attorney under a POA.
When appointing more than one attorney (two Attorneys is advised), the next question is whether the attorneys may act singly, or must act jointly in relation to your affairs. To resolve this choice I would suggest that the donor sits down with their proposed attorneys and discusses these options and their implications. Should you conclude that your attorneys must act jointly, you will have a degree of extra security – but at the expense of making the POA more difficult to manage. For example, banks or healthcare providers may require written instructions from all attorneys before they will undertake even the simplest transaction.
In discussing who will be your attorneys, think innovatively of checks and balances. Who is likely to survive you? Who has both the time and skills to manage your affairs? Who will be sensitive, responsive and honest? How well will your chosen attorneys share auditing information with other key members of your family?
Registering the POA
I have encountered some examples of cases where a relative has granted POAs, but failed to register them with the Office of the Public Guardian (OPG). Registration is a fairly simple task, and the registration fee is modest. It is usually completed in about two months. Without registration, powers cannot be exercised and the process of making a POA will have been wasted.
Using your POA
Registration simply ensures that the POA delegation is legally valid. Before it can be used, organisations that are expected to rely on it will require sight of the original grant or a certified copy. Each company or organisation will individually record the fact of a delegated power.
POA for health and welfare
It is wise to ensure that the donor’s NHS GP provider is notified that a POA for health and welfare has been registered with the OPG, by asking that it be recorded on the patient’s medical records. This means that when/if a donor loses capacity, decision making can immediately be transferred to the attorneys.
You will note that the NHS website linked above also refers to ‘Advance Decisions’ – which were considered in our earlier post here. I have a copy of my Advance Decision lodged digitally with my GP.
POA for property and financial affairs
Unlike the health and welfare POA, the absence of a doctor to assess loss of capacity means that delegating decisions concerning finances is a more sensitive step.
Financial institutions have differing procedures for registering your POA with them, and the process will take about an hour of face-to-face meeting. Attorneys will be expected to provide the original or certified copy of the POA, evidence of their identity (such as passport), evidence of their address, and their personal banking details. If the donor and the attorney both bank with the same provider, this process is foreshortened.
Once satisfied that a genuine POA for property and finance has been registered with the OPG and is ready to be activated, bank providers can issue a POA card for each attorney for each of the donor’s accounts held by them. This will enable purchases, transfers and other transactions on the donor’s account, and will permit online access. I strongly recommend online access, as in the case of multiple attorneys, each of them then may have access to the financial accounts to track and check the purpose of transactions.
Whilst digitising online access to the donor’s bank accounts, consider digitising all utilities – water, power, telephone, council tax. Doing so will provide the attorney with immediate online access to track payments and usage.
To sum up
A POA is an essential tool when it comes to the loss of capacity. With extended survival, a donor may be assisted by their attorney for many years. Using Advance Decisions and Advance Statements in conjunction with the POA will add a much-needed safeguard for both donor and attorney. A decision to make them can never be too early – but may often be too late.