A smiling carer chats with an elderly lady

Making a Power of Attorney – understanding the responsibilities

Regular readers of this blog will know that making a Power of Attorney is one of the most useful things that you can do in considering later life. Knowing who is going to make decisions on your behalf regarding your health and financial affairs can be a great comfort.

The government website Make, register or end a lasting power of attorney is a great resource and enables anyone to create a Lasting Power of Attorney.  Using the online tool it is possible to draw up a Power of Attorney without professional assistance.   But will this document be fit for purpose? It is essential that the document is completed accurately, but who drafted the Power of Attorney and did they take advice about what they were creating?

I often receive calls from relatives asking ‘Can I be made Power of Attorney for my mother?’. The answer to which is: of course you can – how does she feel about it? At which point there is sometimes an awkward silence when it is realised that mother lacks capacity to make these decisions herself and that she is not in a position to draw up these documents.

In the following cases Powers of Attorney were set up and then revoked as the attorneys had very little understanding of their role:

JS v KB and Anor (Property and Affairs Deputy for DB [2014] EWCOP 483

Re SH (The Public Guardian v RL, FJ, and KLC [2016] EWCOP 2

Powers of Attorney are really very important documents. They are not pieces of paper that simply allow someone to access the funds of another person. They are pieces of paper that confer great authority and mean that decisions have to be made in accordance with the best interests of the individual – a fundamental aspect of the Mental Capacity Act 2005.

A current  and interesting development surrounds the delegation of authority to discretionary funds managers. Discretionary Fund Managers are professional third party investment brokers working within financial set parameters in terms of choosing a financial portfolio and who have a wide discretion to act without taking their client’s instructions on every decision. Technically, an attorney cannot delegate responsibility for their actions unless authorised to do so. A failure to include this provision in an LPA can be disastrous as additional expense, including the use of a financial adviser, may need to be incurred.

So yes, you can make a power of attorney on line for the cost of the registration fee, however, do you want to?

If you or an elderly relative need advice regarding access to health or social care provision then contact a member of our Elderly Care Team.