When appointing someone to act as your power of attorney (POA), choosing the right person is crucial. A power of attorney holds significant authority, often managing finances, property, or healthcare decisions on your behalf. While many focus on who can be appointed, it is equally important to understand who cannot serve as a power of attorney in England and Wales. This article explores the legal and practical restrictions surrounding this critical role.
Legal Restrictions on Power of Attorney Appointment
The Mental Capacity Act 2005 sets out the legal framework for powers of attorney in England and Wales. Here are the key legal restrictions:
- Underage Individuals
- The law states that a power of attorney must be at least 18 years old. This age requirement ensures that the attorney has the legal capacity to enter into binding agreements and fulfil their responsibilities.
- Bankrupt Individuals (for Property and Financial Affairs POA)
- If you are appointing someone to manage your financial matters under a Property and Financial Affairs Lasting Power of Attorney (LPA), they cannot be an undischarged bankrupt. Bankruptcy disqualifies individuals from handling financial affairs on behalf of someone else. However, this restriction does not apply to Health and Welfare LPAs.
- Individuals with a Lack of Mental Capacity
- A power of attorney must have the mental capacity to make decisions and act in the donor’s best interests. If someone lacks capacity, whether due to a medical condition or other factors, they are ineligible to serve as a POA.
- Those Prohibited by the Donor
- The donor has the right to specify restrictions or exclusions when drafting the power of attorney document. For example, they may explicitly exclude certain individuals from serving in this role.
- Convicted Offenders (in Certain Situations)
- While there is no outright legal restriction on appointing someone with a criminal record, it may raise concerns. Financial institutions or other third parties may hesitate to work with an attorney who has convictions, especially for fraud or financial misconduct.
Practical Considerations When Choosing a Power of Attorney
In addition to legal restrictions, practical factors may render someone unsuitable for the role. These considerations include:
- Conflict of Interest
- A power of attorney must act in the donor’s best interests. If an individual has personal or financial conflicts that could interfere with their decision-making, they may not be a suitable choice.
- Geographic Location
- While a POA can technically live anywhere, appointing someone who resides far away may lead to logistical challenges. Regular access to manage property or attend meetings could become difficult.
- Lack of Reliability or Trustworthiness
- Trust is a cornerstone of any POA relationship. Individuals with a history of dishonesty, irresponsibility, or poor financial management should be avoided.
- Limited Availability
- Being a POA can be time-consuming. Appointing someone who has limited availability due to work, family commitments, or other responsibilities may not be ideal.
Who Should You Choose Instead?
Given these restrictions and considerations, selecting the right person for your power of attorney is essential. Ideal candidates are:
- Trustworthy and reliable.
- Capable of understanding and handling complex decisions.
- Organised and detail-oriented.
- Familiar with your values and preferences.
If you cannot find a suitable person among your family or friends, you may consider appointing a professional attorney. Solicitors, accountants, or organisations that specialise in this field can act as your power of attorney, ensuring impartial and professional decision-making.
How to Ensure Compliance
To avoid appointing someone who is ineligible or unsuitable, follow these steps:
- Consult a Professional
- A professional can guide you through the process of creating a power of attorney and ensure all legal requirements are met.
- Use the Office of the Public Guardian (OPG) Resources
- The OPG provides guidance and forms for creating and registering LPAs. Their resources can help you understand eligibility criteria.
- Conduct Thorough Discussions
- Speak openly with the person you wish to appoint. Ensure they fully understand their responsibilities and are willing to accept the role.
- Review Your Choice Periodically
- Circumstances can change over time. Regularly review your POA arrangements to ensure the appointed person remains the best choice.
Conclusion
Choosing a power of attorney is a decision that requires careful thought and planning. Understanding who cannot serve as a power of attorney ensures you appoint someone legally qualified and practically suitable for the role. By considering both legal restrictions and practical considerations, you can safeguard your interests and ensure your wishes are carried out effectively. If you have any doubts or need assistance, consult with a legal professional like us here at The Will Centre to guide you through the process.
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