Most of us would rather avoid thinking about a time when we’re no longer well enough to make our own decisions. It’s far easier – and more enjoyable – to daydream about the happier days we have ahead.
But I know first-hand just how worthwhile it can be to plan for those trickier days, even if they seem a way off.
My parents very sensibly set up a Power of Attorney and this proved immeasurably helpful to me and my brother when they needed help in their later years.
The legal documents they signed appointed us to make decisions about finances and about healthcare on their behalf or manage their affairs when they no longer could.
Having witnessed how vital this was to me and my brother, I was determined to do the same for my children.
Setting up Power of Attorney also gives you more control over who will make key decisions on your behalf if you cannot do so yourself. This could be because of an accident, illness or just advancing years – in other words you lack what is known as mental capacity.
I’m only 60 and in good health so I could have put all this off for a while. But I’ve decided to put it in place now rather than acting in a crisis because you are no longer able to make key decisions. By doing this, my family should find it much easier to deal with businesses and government departments or the NHS and care services on my behalf.
There are two types of Lasting Power of Attorney (LPA), each with a separate application form. One for ‘property and financial affairs’ can be used as soon as it is registered, with your permission, and gives your attorney power to, for example, pay your bills, manage your bank account or even sell your home if need be.
I’m only 60 and in good health so I could have put all this off for a while. But I’ve decided to put it in place now rather than acting in a crisis because you are no longer able to make key decisions, writes Steve Webb
Setting up Power of Attorney gives you more control over who will make key decisions on your behalf if you cannot do so yourself
Having witnessed how vital this was to me and my brother, I was determined to do the same for my children
The one for ‘health and welfare’ can only be used when you’re unable to make your own decisions. It gives your attorneys the power to make decisions over, for example, your medical care, or receiving life-sustaining treatment.
But what I didn’t bank on is how involved the process is to apply for an LPA (the version in England and Wales; it is slightly different in Scotland).
As a former pensions minister, I pride myself on being able to navigate the often-complicated paperwork and jargon used in official documents.
But the process is so bureaucratic that it recently took me two attempts – and an extra fee – to get it right.
What happened to me was that, once we had finally finished with the paperwork surrounding the estates of my late parents, I sat down to sort out LPAs for myself.
First, I went online to gov.uk and started to fill in the financial LPA form. Here, they ask you for a range of details, such as your name, date of birth, address and the details of the attorneys you choose to name.
You do the same for the health LPA, but there are extra questions about things like later life care. Filling out the forms is not just a matter of bureaucracy – there are lots of quite personal decisions that you need to make.
First, I needed to choose my attorney (or attorneys) who will act on my behalf when needed.
In my case all of the people who needed to sign the form live locally, so it wasn’t too hard to get them to sign the paperwork, but it can be a bit more challenging if the attorneys are spread around the country (picture posed by models)
A common misconception is that you are handing over control of your life to someone else when you complete these forms, but that is not the case. As far as possible, attorneys must have regard to your wishes even if you have declining mental capacity.
One way of helping to ensure this happens is to put instructions on the form (particularly with regard to your health and care) so there is no doubt about your wishes.
For example, although I didn’t have strong views, you have the option to set out your preferences over end-of-life care. I also had to decide whether the attorneys will have to act ‘jointly’, meaning they all must agree on any decision, or ‘jointly and severally’, where any one of them can take a decision.
You may be happy that any of your attorneys can act on your behalf, and this will typically be more convenient for them. But there may be big decisions that you only want taken if they all agree.
For example, it may be controversial to allow one person to decide on whether a life-support machine should be switched off when you have no realistic prospect of recovery.
The form also gave me the opportunity to specify people who should be notified that the LPA has been applied for, so that they can object if they wish. In my case, the attorneys covered most of my immediate family, but other family members such as siblings might want to be notified.
Once you’ve completed as much as you can online, you print off the forms and start the process of getting them signed. Alternatively you can download blank paper forms from the website gov.uk/government/publications/ lasting-power-of-attorney-forms and fill them from scratch.
Having printed the forms, I then had to get each of my attorneys to sign the form, with someone else witnessing their signature. In my case all of the people who needed to sign the form live locally, so it wasn’t too hard to get them to sign the paperwork, but it can be a bit more challenging if the attorneys are spread around the country.
Something I hadn’t expected is you have to choose someone as a ‘certificate provider’. I had no idea what this piece of jargon meant.
But it turns out it is simply someone who is not an attorney but who ‘certifies’ that you know what you are doing and are not acting under duress when you fill in the form.
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It must be someone who is not related to you (or employed by you) and they must have known you well for at least two years. I chose a friend from our local church who is used to dealing with official paperwork.
So in total, to complete the documents you need your own signature, that of your attorneys, the witnesses to their signatures and a certificate provider.
Once the forms were filled and signed, I popped them in the post and waited to hear the outcome. Unfortunately, a few weeks later I received a letter from the Office of the Public Guardian saying the health and welfare form had been rejected and I had to start again, including gathering all the signatures from everyone again.
The health and welfare LPA application is more complex than the finance LPA, as you have a chance to make some important decisions, such as whether your attorneys can give consent or refuse consent to ‘life-sustaining treatment’ on your behalf. It was in this section I made my mistake as I failed to notice you also have to specifically sign this section as well as sign at the end.
I can understand why the extra signature was required. The documents are about life-and-death decisions so it makes sense that everyone involved should have to separately sign this section to ensure they have all understood it.
But it’s harder to see why, having accidentally missed the signatures on that page, it wasn’t possible for me to send it back in with signatures added.
The one concession they make (no doubt because so many get it wrong first time) is you can pay a reduced fee if you resubmit your application relatively promptly.
Depending on the type of mistake, you may be able to correct it and apply again within three months for £46 for one form – instead of the usual £92.
The best advice I can give – and what I wish I’d done – is to meticulously go through the step-by-step instructions in the accompanying guide [LP12 Make and register your lasting power of attorney: a guide (web version) – GOV.UK]. This also helps to answer most questions you may have and explains some of the terms on the form. But be prepared to set a good afternoon aside – the guide is 17,000 words long while a second guide that is attached to the application forms is 66 pages long.
The guide explains who can and cannot sign different bits of the form, and the order in which people should sign. For example, attorneys can witness the signature of other attorneys, but attorneys cannot ‘certify’ that you are not acting under duress.
I can’t help feeling that a process we really want more people to go through could be streamlined and made easier, especially for people for whom filling in forms doesn’t come naturally. And, despite my experiences, it should be possible for someone who is careful and follows the instructions to do it themselves and not need to pay a legal professional hundreds of pounds to do it on their behalf.
The system asks an awful lot of people, as evidenced by the sheer length of the guides alone. I worry it would be easy to put the entire process off until a later date, especially if your initial application (like mine) was rejected.
But that could leave families without Power of Attorney in place, facing an expensive and drawn-out application through the Court of Protection to secure the right to manage a loved one’s finances. This process can take up to six months and costs £421.
As we live longer and the number of applications for Power of Attorney increase, the system is in desperate need of modernisation.
Steve Webb was Pensions Minister from 2010 to 2015 and is a partner at consultants LCP.
