Making a Power of Attorney (POA) is unlikely to be a priority for most people, and it isn’t something you tend to think about until you are getting on a bit. But even young people can become incapacitated and unable to look after their affairs. A POA is a legal document that allows you to choose someone to act on your behalf and in your best interests should something awful occur which leaves you out of action. Some might consider that a POA is more important than a will, because it affects what happens to you while you are still alive!
If you planned to make a Power of Attorney before October 2007 but didn’t get around to it, you’re in for a bit of a shock. I arranged Enduring POAs for my father and also mother-in-law well before the 2007 deadline. The POA form covered all aspects of responsibility, was five pages long (mostly taken up with signatures and residential addresses), and could probably be understood by an average sheep. Registration of the POA once the donor became incapable of handling their affairs entailed completion of another simple form (seven pages, but again mostly names and addresses to be filled in) and parting with a cheque.
OK, I’m not that ancient, but beginning to ask myself whether buying gel pen refills in bulk will turn out to be a cost saving measure after all. And my wife is thinking in terms of what needs doing around the house to ‘last us out’. Which is a bit of a joke, because the list is so long I’ll never get it all finished before I add a pot of ash to the crematorium footpaths. So, we decided to prepare mirror POAs for the two of us in case the one way ticket to extinction takes a long and tortuous route.
The good news is that everything needed is available on line here. Note that although the guidance says you can fill out the forms on line, you still have to print them out to gather the required signatures, and have to post these to the Office of the Public Guardian (OPG).
The bad news is that you have to make separate POAs for financial and health aspects. This doesn’t sound unreasonable since it allows you to choose different attorneys for your welfare and assets, until you discover that each POA form is a dozen pages long, and each has to be accompanied by an application to register it, an even longer form. Then the really bad news. Two lots of £130* are required to register both financial and health POAs. The same donor, same attorney, same everything, but two registration fees. So, our mirror POAs set us back £520! That figure, though, paled into insignificance when we discovered that a friend had arranged a POA for her father using a solicitor, and this set her back almost £1000. For one POA for one person.
Just like writing a will, or proving it and carrying out probate (see my Probate DIY tab), choosing to make and register a POA is actually quite straightforward. Basically, you just follow the instructions on the OPG website. That is what I did, and everything went smoothly except for a slight hiccup. I asked their customer services desk if I could send the forms double sided and was told I couldn’t, because they had to be scanned. So I shredded all my double sided copies and reprinted a forest of paper to send. A later email exchange with the OPG informed me that they CAN accept double sided printing. I suggested they told their customer services desk!
On a lighter side, I saw this the other day, and was tempted to add it to my Health and Welfare POA:
If I am on life support and you decide to turn me off,
please turn me on again just once to see if that works.
Finally, here are a few snippets from along the way, which you might find useful:
Don’t you have to engage a solicitor to sign that the donor knows what they are doing? No. Anyone who knows you well can take on the role of ‘certificate provider’, which is what the OPG calls the person checking that the donor isn’t being forced to appoint an attorney and understands what they’re doing. There are useful questions for them to ask in the guidance notes.
How many people have to get involved? The donor, one or more attorneys, a certificate provider and one person to be informed when the POA is registered. If you don’t wish to inform anyone that the POA is being registered, you need two certificate providers. But, remember that these can simply be people who know you well enough to vouch for your intentions.
What about witnesses to signatures, though? A witness can’t be the donor or an attorney, but anyone else can sign as a witness including the certificate provider or the person you have said is to be informed if the POA is registered.
Can my attorney take control over all my affairs at any time? Only when you are incapable of doing so yourself. In practice, this means that so long as you don’t lose your mental capacity, you are still fully in control.
Can I make a POA without registering it with the OPG? Yes. The POA exists once you have filled out the forms and gathered the signatures. However, it cannot be used by your attorney until it is registered, and since there could be little warning of becoming incapacitated it makes sense to register it straight away.
Can I change my attorney? Yes, but you would need to revoke the existing POA and register a new set of forms with the OPG. You would also have to pay again!
Can I really do it myself? The forms are quite straightforward, although you need to read the guidance notes as you go along. You also need to be careful to cross out sections that don’t apply (and there are lots of them!), so the OPG knows you haven’t just forgotten to fill them in. Apart from that, a simple POA mostly just requires names and addresses to be written in the correct boxes and a few ticks and crosses here and there.
* It appears that the fee has very recently been reduced to £110 per registration, but compared to what it would have been with the old style EPA, that’s still a huge jump. It is also possible to apply for the fee to be waived in certain circumstances.
Disclaimer: Please note that I am not a legal practitioner and information in this post is based upon my personal understanding of how a POA works. You must go to the Office of the Public Guardian website for authoritative information.