We should all be thinking about who we would want to make financial decisions on our behalf if we could no longer make them ourselves. Here’s how.
What is a power of attorney?
A power of attorney is a legal document that lets you give one or more person the power to make decisions and manage your money and property.
As long as you’re aged 18 or over, you can set one up at any time, providing you’re able to weigh up information and make decisions yourself.
It’s a big step, so you might want to get advice from a solicitor.
A power of attorney can help you with:
Temporary situations – for example, if you’re in hospital or are abroad and need help with everyday tasks such as paying bills.
Longer term situations – for example, you want to plan for the unexpected or have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in future.
Types of power of attorney
There are different types of power of attorney (POA) in Northern Ireland, and you can set up more than one. These are:
General – this is also known as an ordinary power of attorney. This is for when you only need help temporarily. If you lose mental capacity, it’s no longer valid.
Enduring – this is an ongoing arrangement with no expiry date. It will allow the person/people you choose to make decisions about property and finance on your behalf. It can continue if you lose mental capacity. An enduring power of attorney made on or after 10 April 1989 must be in the exact form prescribed by the Enduring Powers of Attorney Regulations (Northern Ireland) 1989.
In Northern Ireland (unlike England, Scotland and Wales) there’s no way to give another person the legal power to make decisions about your health and welfare.
Donor versus attorney
There are quite a lot of technical terms when it comes to power of attorney. We’ve tried to keep them to a minimum, but two important ones you need to know about are the difference between a donor and an attorney.
Donor – is the person giving authorisation to someone else, to represent or act on their behalf. Anyone can be a donor, as long as they’re aged 18 or over and are mentally capable.
Attorney – is the person chosen by the donor to make legal decisions about their property and finances. Anyone with mental capacity, aged 18 years or older and not bankrupt when signing the POA can be an attorney in Northern Ireland. This includes a wife, husband, civil partner, partner, friend, family member or a professional, such as a solicitor.
You can choose either individuals or an organisation, such as a firm of solicitors or a bank, as your enduring power of attorney.
What an attorney (someone representing you) does
An attorney has the power to make decisions on behalf of the donor. They must:
- support the donor or client to make their own decisions
- make any decisions in the donor’s best interests
- consider the donor’s wishes and feelings.
If the attorney doesn’t do these things, this could mean they are referred to The Office of Care and Protection (the OCP) at the Royal Courts of Justice
Acting as an attorney means you should maintain a duty of care to the donor, and not benefit yourself. It’s important to avoid any potential conflicts of interest.
Some donors may choose to make several enduring power of attorneys, appointing different people to do different things.
Types of authority given
An enduring power of attorney may give:
A general authority - this authorises the attorney(s) to carry out any transactions on the donor’s behalf, which the donor is legally able to delegate to the attorney(s).
A specific authority - this enables the attorney(s) to deal only with those aspects of the donor’s affairs that are specified.
The importance of mental capacity
Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.
Mental capacity is a legal term. You can’t assume someone is able to make decisions, even if you know them well.
The law that governs power of attorney and mental capacity in Northern Ireland is known as the Enduring Power of Attorney Order (Northern Ireland) 1987. It’s designed to protect and safeguard people who have lost or may go on to lose capacity.
Did you know?
If you’re married or in a civil partnership and lose mental capacity to make a specific decision – your partner won’t automatically be allowed to make that decision on your behalf without a lasting power of attorney.
What is a controller?
If you haven’t set up an enduring power of attorney and you lose your mental capacity, someone can apply to become a controller.
A controller can manage your finances, including paying for bills and shopping. They’re usually a family member or someone who knows you well, but it can be a solicitor.
They’ll need permission from the Office of Care and Protection (OCP) before making any decisions on your behalf. For example, selling your house. And they need to present information about your finances to the OCP every year.
What you need to know about an enduring power of attorney in Northern Ireland
Lots of people worry that if they create an enduring power of attorney, they’ll have to give up control before they’re ready. This isn’t the case.
You can limit the powers that apply
The donor can restrict the authority of the attorney (s) by putting restrictions and/or conditions in the enduring power of attorney.
When does it come into force?
The donor may ask that the attorney(s) can’t act until the donor becomes mentally incapable or until the enduring power is registered by the Court.
While it takes effect as soon as the attorney signs the documents (unless you’ve included any such conditions or restrictions about when powers should begin), registration isn’t needed until your attorney believes you’re no longer capable of managing your affairs.
When the attorney(s) consider that you’re lacking in capacity or unable to manage your affairs, they must notify you and certain close relatives of their intention to register the enduring power of attorney. At least three relatives of the donor must be informed – and there is a strict order of who should be notified first. An application to register must then immediately be made to the OCP, accompanied by the original enduring power of attorney document and the registration fee.
Did you know?
When a donor has become mentally incapable and before the power has been registered, the authority of the attorney(s) to deal with the donor’s property and affairs is very limited. It’s in the interest of the donor and attorney(s) to register as quickly as possible.
When thinking about which powers to give, you should think about the short term and longer term. This will make sure your attorneys have enough powers to make decisions on your behalf.
When does an enduring power of attorney end?
It can be ended when:
- the donor decides to cancel it, or if they’re mentally capable
- the donor dies
- sole attorney dies and there’s no replacement
- a sole attorney disclaims
- the attorney is no longer mentally capable
- the OCP cancels it.
When an enduring power of attorney has been registered, it can only be revoked by the OCP.
Decisions when making an enduring power of attorney
It’s a lot harder and more expensive for someone to help you with your money and property and welfare if you’ve already lost mental capacity.
It’s really important to get it all set up before something happens because life is uncertain, and you never know when something like an accident or stroke might happen. The whole process can take several weeks.
If you want to talk to someone about whether you should set one up, contact a solicitor for advice or the OCP for general guidance.
The Office of Care and Protection is based in the Royal Courts of Justice at the lower end of Chichester Street, in central Belfast.
Enquiries can be made in person, by calling or by post to:
The Office of Care and Protection Room 2.02,
First Floor Royal Courts of Justice
Belfast BT1 3JF
Telephone: 0300 200 7812 (Monday – Thursday only).
It’s not free to call, so make sure you check how much it will cost you before calling.
You can also call us free on 0800 138 7777.
Talk to a solicitor
It’s a good idea to get legal advice as you need to think carefully about the powers you want to give your attorney.
For help finding a solicitor, go to The Law Society of Northern Ireland.
Choosing an enduring power of attorney – a checklist
Being an attorney is a responsible role and shouldn’t be taken on lightly. So it’s important to think carefully about who to choose.
Choose someone you trust completely – you need to really trust whoever you choose as they’ll be making serious decisions for you. Most people choose close family members or friends. You could also choose a company, but this often costs a lot and isn’t allowed in the case of a welfare POA (where the attorney must be an individual).
Make sure they’re willing to act for you- you need to make discuss with them what you’ll want them to do. They need to know what’s involved, what your wishes are and where all your paperwork is.
Leave plenty of time -plan in advance as it takes several weeks to set up and you need to complete it before losing mental capacity.
Consider age – if you’re older, be wary of choosing someone who is a similar age as you (or older). They might not end up being the best person to act for you, if and when you need their help, because of their own health issues.
Consider whether you should have more than one attorney – there are pros and cons to this. On one hand, more than one person means you don’t have to leave people out of the process and it spreads the work. On the other hand, they may disagree about what actions to take. Depending on their location, it might be tricky for them to meet and sign documents. However, if one dies, your remaining attorney(s) won’t be able to make any decisions unless you’ve appointed a substitute.
An attorney is expected to act in the best interests of the person, and to consider the person’s needs and wishes as far as possible.
They must be aware of the scope of their authority and responsibilities as set out in Article 5 of the Enduring Power of Attorney Order (Northern Ireland) 1987.
Appointment of joint or replacement attorneys
You could also consider whether you want to appoint more than one attorney. This will make sure that you’re not left without anyone to manage your affairs:
- You can appoint any number of attorneys.
- You can’t give your attorney(s) the right to appoint a substitute, replacement or a successor. However, you can choose replacement attorneys.
If you appoint joint attorneys, they’ll have to act together, and both be involved in any decision making on your behalf.
If you want them to be able to act together or separately, you should include in the power of attorney that you are appointing them “to act jointly and severally or severally”. Including this statement allows each attorney to act as an individual or jointly with each other.
Remember, where attorneys can only make decisions jointly and one attorney dies (or becomes unable or unwilling to act), unless replacements are specified to replace all the original attorneys, then the enduring power of attorney can no longer be used.
In these circumstances, the surviving attorney(s) should notify the Court so that any necessary alternative arrangements may be made. Where appointed “to act jointly and severally or severally”, the surviving attorney(s) can continue to use their powers.
How do I set up an enduring power of attorney?
An enduring power of attorney must be recorded on a specific form, which is available from a solicitor or a stationer specialising in legal documents.
Make sure that an up-to-date form is used and that it’s completed correctly, or it won’t be valid. Your solicitor can advise you on this.
When the form is completed, it must be signed by you and witnessed. It must then be signed by the attorney(s) and witnessed. The attorney(s) must sign the form before you become unable to manage your affairs. Attorney(s) may not act as witness(es) for each other’s signatures.
For more information, including copies of relevant forms, go to the Department of Justiceopens in new window website.
How much does setting up an enduring power of attorney cost?
It doesn’t cost anything to draw up a lasting power of attorney, unless you want a solicitor’s help.
In Northern Ireland, you can use it without registering it while you still have mental capacity, but you have to register it as soon as your mental capacity starts to decline.
It’s best to register as soon as possible. This is because during the registration process, the document will be checked for errors.
There is a fee for registration – details of fees are available from the OCP. However, your solicitor can apply for a reduction if paying this fee is likely to cause you hardship. If you’re receiving income support, your care home fees are being paid by the health and social services trust. Or. if your house is your only asset, the fee will generally be waived.
Cancelling an enduring power of attorney
You can cancel (or amend) the enduring power of attorney at any time while you’re mentally capable.
Power of attorney – myth-busting
Am I too young to set up a power of attorney?
Accidents and illnesses can happen to anyone at any time. With a power of attorney, someone who you choose and trust can make financial decisions for you if you need them to. It’s better to be safe than sorry.
I have a will, so I don’t need a power of attorney
A will comes into play after you die; a power of attorney protects you when you’re alive.
My family can look after me
It surprises most people to learn that without legal authority, your family won’t automatically be allowed to make decisions for you if you’re in an accident or get ill.
I don’t have money so why do I need one?
You may not have many assets of money right now, but you may in future. Plus, an accident or illness may mean you can no longer make decisions by yourself. If you’re on a low income, you may be eligible for a discount.