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, circumstances 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
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
Need further help?
If you would like guidance about any aspect of your role as a Deputy, or you would like advice on applying to become a Deputy, please do not hesitate to get in touch with us.