A power of attorney is useful in the instance that a person becomes incapacitated, or in need of help with making decisions. This can include decisions on their finances and their health.
The types of power of attorney include ordinary power of attorney, lasting power of attorney and enduring power of attorney. The latter was replaced by lasting power of attorney in October 2007, but if made before this, should still be valid.
A lasting power of attorney is used when a person wishes to appoint another person, to make decisions for them when/should they lose the ability to make them themselves. It is different from a Will as it is only effective whilst the donor is alive. A Will protects the person’s beneficiary’s interests after death, whilst a power of attorney protects the donor’s interests whilst alive. There is no overlap of the two therefore a power of attorney is still important even if there is a Will in existence.
Spouses do not automatically have power of attorney. A spouse or other family member would still require legal authority to act on the behalf of the person. This means that without a power of attorney in place, there is the risk of strangers making decisions on their behalf.
If the person becomes incapacitated before a power of attorney is made, the spouse would need to go to court to get legal authority to act on the behalf of the person. This can be a long and expensive process at a time which may already be upsetting and stressful.
Even though the spouse and the incapacitated person are married, the court may not necessarily allow the spouse to act on behalf of the person. If they become incapacitated without a power of attorney in place, they will need to apply to the Court of Protection. The Court of Protection will decide whether a person has mental capacity to make a decision; make an order relating to the health and care decisions or property and financial decisions of someone who lacks mental capacity; and appoint a deputy to make decisions on behalf of someone who lacks capacity. This is then called a deputyship order.
You cannot appoint your own deputy and the deputy can only act to the extent of their authority set out by the court. This is why even if someone is married, it is important to have a power of attorney in place, to ensure their interests are protected and their decisions are being made by someone they trust.
By April Knowles, graduate paralegal