A Power of Attorney is a legal document. It allows you, the donor, to appoint others, the attorney, to take care of your affairs if you begin to struggle physically or lose mental capacity.
This is especially important if you’re in a relationship and seeking Power of Attorney for couples. It allows you or your partner to take care of the other’s affairs without delay. This can provide peace of mind that your assets and finances will be managed by someone you know and trust.
Who can set up a Power of Attorney?
To set up a Power of Attorney, you must:
- Be 18 years or older
- Be of sound mind
- Understand the implications of having Power of Attorney
Remember: a Power of Attorney document needs to be in place before you are legally declared mentally incapacitated. Make sure you plan ahead so that you are eligible.
What are the types of Power of Attorney?
Today, there are two types of Power of Attorney:
Lasting Power of Attorney
A Lasting Power of Attorney (LPA) gives the attorney control over the donor’s affairs until it is revoked or the donor passes away.
It can take effect immediately after signing or be placed on hold until you lose capacity. A Lasting Power of Attorney must be registered with the Office of the Public Guardian.
Ordinary Power of Attorney
An Ordinary Power of Attorney generally focuses on financial matters and gives control for a limited period of time.
You can specify which decisions the attorney can make, for example managing your financial affairs but not your properties.
How does Lasting Power of Attorney work?
As a couple seeking Power of Attorney, you will likely need a Lasting Power of Attorney. This lets you choose whether to give your partner control over your health and welfare, your property and finances, or both.
Health and Welfare Attorney
A Health and Welfare Power of Attorney gives your partner the right to act on your behalf and make decisions for you.
This includes determining your treatment, dealing with medical professionals, deciding the type of care you receive, and even your diet. It also gives them the right to decide where you live, such as in a care home.
Your partner can only take on this power after you have been declared mentally unfit. This is unlike a Property and Financial Affairs Power of Attorney.
Property and Financial Attorney
A Property and Financial Power of Attorney lets your representative take control of your financial decisions.
It allows your partner to use your money, property, and investments, and handle paying bills and taxes.
You do not need to be incapacitated for the Lasting Power of Attorney to take effect. For instance, an LPA can be in place if you live abroad and need someone to manage your assets and estate in this country.
Do married couples need a Power of Attorney?
Yes. While your partner may be your next of kin, that does not automatically grant them the right to manage your affairs. It is wise to set up Power of Attorney as a couple, whether you are married, in a civil partnership, cohabiting, or in a long-term relationship.
Without this legal document, things can become complicated if you lose mental capacity. Your property might not be able to be sold. Your joint bank accounts may be frozen or restricted until your partner gains control through the Court.
This can be a lengthy, costly, and exhausting process, often taking over six months. It is something that could have been avoided if a Power of Attorney had already been put in place.
Think of a Power of Attorney for couples as a safety net. It acts like an insurance policy that gives you both peace of mind.
How do you get Power of Attorney?
If you’re looking to apply for a Power of Attorney, there are four basic steps to follow:
Step 1: Choose your attorney
For couples, this should be a relatively straightforward choice. However, you might consider other relatives, friends, associates, or professionals whom you trust. Your chosen attorney must be over 18, not bankrupt, and mentally capable of undertaking the role.
You can appoint more than one attorney. You also need to decide whether they can make decisions independently as well as together, known as jointly and severally. Alternatively, you can decide that decisions must be agreed unanimously, which is known as jointly.
It is also possible to include a mixture of both in your Power of Attorney. This allows some decisions to be made jointly, and others jointly and severally.
In some cases, these arrangements are laid out by the donor. You may want to specify who manages what. Perhaps one attorney will look after your property, while all of them can take care of finances. Sometimes, one person may manage the estate, with others helping as needed.
Step 2: Complete the required forms
The next step is to complete two forms, either online or by printing and posting them from the gov.uk website. Given the complexities of setting up a Power of Attorney, it is a good idea at this stage to take guidance from a solicitor or Will Writer.
You will need form LP1H to set up a Health and Welfare Lasting Power of Attorney. To apply for a Property and Financial Affairs attorney, use form LP1F.
Completing both forms at the same time is a good idea, particularly when setting up Power of Attorney for couples.
Step 3: Notify named people
This is an optional step. You may wish to include people to notify when completing your Lasting Power of Attorney forms. If so, you then need to send an LP3 form to everyone named.
If they object to the Lasting Power of Attorney, they can raise the issue with the Office of the Public Guardian. Anyone not named as an attorney can be notified, offering an extra layer of protection. Named people may be more likely to raise concerns or identify difficult issues that those with a vested interest, such as your attorneys, may not.
Step 4: Register your Lasting Power of Attorney
You or your attorney will need to register your forms with the Office of the Public Guardian. This happens once your forms are completed and any named people have been notified. The forms can be posted or completed online. If your attorney takes this step, you will receive a notification.
Expect it to take around fifteen weeks or more to register your Lasting Power of Attorney.
Can a Power of Attorney change a will?
Whether a Power of Attorney can make changes to your will depends on your circumstances.
You must possess what is known as testamentary capacity to alter a will.
In other words, you need to know what a will is, what your estate includes, and who might have a claim on it. You have probably heard the phrase of sound mind and body. That is broadly what determines your testamentary capacity.
A Power of Attorney comes into effect once you no longer have the mental capacity to make these changes. Your attorney may then decide to apply to the Court of Protection to change the will. They might do this if they believe it is no longer appropriate, for example if it was made a very long time ago, beneficiaries have since died, or you left no will at all.
However, the Court of Protection is under no obligation to approve the application.
Power of Attorney for couples FAQs
Do I need to use a solicitor for a Power of Attorney?
While you do not need to consult a solicitor or legal professional for a Power of Attorney, it is a good idea to do so. You can fill out the forms yourself, but mistakes happen. If you complete the forms incorrectly, your Lasting Power of Attorney could be rejected, and you may have to pay a fee to reapply.
To avoid mistakes and unwanted charges, it is often sensible to use a solicitor when arranging a Power of Attorney.
How long does it take to get a Power of Attorney?
Getting a Lasting Power of Attorney can take around 20 to 21 weeks, according to the Office of the Public Guardian. This only covers the period from when you register your LPA forms.
If you are seeking support from a solicitor, it can take under a week to prepare the forms for application. However, when accounting for everyone’s schedules, four to five weeks is a more realistic estimate.
This timeframe assumes the application is completed without mistakes.
How much does Power of Attorney cost?
The average price of Power of Attorney for couples ranges from £100 to £1000.
However, that does not include solicitors’ fees. As mentioned earlier, it is important to get legal help when setting up a Power of Attorney because of its serious nature. This can help give you peace of mind.
Most solicitors offer a flat fee for handling Power of Attorney, but these fees vary, so it is a good idea to compare costs.