3 Using a Lasting Power of Attorney
Once a Lasting Power of Attorney has been registered and the documentation received, it can be used at any time – you don’t have to wait for the donor to lose capacity. It might be that you (if you are the attorney) need to use it straightaway, if your relative is very ill. Or you might need to use it every now and then for short periods while your relative is in hospital. On the other hand, the document might sit in a drawer for years before it is needed.
The attorney must show a certified copy of the Lasting Power of Attorney (not just a photocopy) to any organisation that they want to deal with on their relative’s behalf, including the donor's bank. If you want certified copies at a later date, any solicitor should be able to do this for a small fee (around £5 per copy).
Dealing with banks when using a power of attorney
Which? research (January 2015) has shown that not all banks will give telephone or online access to power of attorney accounts. In addition, there isn't consistency across the board about the availability of a debit card or an overdraft facility. If any of these facilities are important to you, check the different banks to establish what access they offer. If your donor's bank won't offer them, you might have to think about moving the account to one that does.
To find out more about the guidance framework that all banks and building societies should follow, see this page in the Retirement section of Which? Money.
If your relative lacks mental capacity
If your relative is no longer able to make their own decisions, it is too late to apply for a Lasting Power of Attorney. In this situation, relatives in England and Wales will have to make an application to the Court of Protection. The Court of Protection was set up by the Mental Capacity Act to represent the best interests of people who cannot make decisions for themselves. The Court can:
- decide whether someone is mentally capable of making decisions or not
- make decisions about the affairs of someone lacking mental capacity.
In the absence of a Lasting Power of Attorney, the Court can appoint a ‘deputy’ to manage your relative’s affairs. This is most likely to be a close relative, but the court can appoint a professional if there is no one else suitable to do it.
You can read more about appointing a deputy in our article about the Mental Capacity Act.