What is a power of attorney?
A power of attorney gives legal power to one or more people – your ‘attorneys’ – to help you make decisions or make decisions on your behalf. You might need them to do this:
- temporarily, for instance if you were in hospital
- in the longer term, perhaps if you became ill and could no longer make decisions.
Different types of power of attorney
Different types of power of attorney can be used in different situations. You may sometimes want to set up more than one type.
- Ordinary power of attorney – gives someone the authority to make decisions or take actions about your finances while you still have mental capacity
- Lasting power of attorney (property and financial affairs) – gives someone the authority to make decisions about your finances with your permission or if you lose mental capacity
- Lasting power of attorney (health and welfare) – gives someone the authority to make decisions about your health and care if you lose mental capacity
- Enduring power of attorney – this was replaced by lasting power of attorney for property and financial affairs on 1 October 2007. If you’d already made an enduring power of attorney before this then it will still be valid. Be aware that it only covers property and financial decisions, so you might wish to set up a lasting power of attorney for health and welfare as well.
What is mental capacity?
Mental capacity is the ability to make and communicate decisions when they need to be made. You may want the peace of mind of knowing that someone you have chosen will be involved in making decisions for you if you lose this ability.
There could be many reasons for not having mental capacity, including:
- being unconscious as a result of an accident or illness
- suffering a stroke
- having a degenerative disease
- having later-stage dementia.
It’s possible to have mental capacity at some times, but not at others. For example, if you’re unconscious this may only be a temporary loss of mental capacity. The NHS website has more information about mental capacity.
Choosing an attorney
Your attorney can be given complete authority over your financial and personal affairs so you should choose someone you trust to make decisions in your best interests. It could be:
- your partner or spouse
- a family member
- a friend
- a professional, such as a solicitor. You may need to pay a fee to a professional attorney.
You can choose more than one attorney. You will have to specify whether they can make decisions on their own, if they must all agree before a decision is made, or if they can make some decisions together and others separately.
Ordinary power of attorney
You can set up an ordinary power of attorney if you need someone to act for you for a temporary period. It’s only valid while you have mental capacity.
An ordinary power of attorney can be useful if you:
- are going into hospital
- are ill
- find it difficult to go out.
You can let your attorney deal with all your finances and property or you can restrict them to specific powers. For example, you could allow them to:
- have access to your bank account
- sign cheques and make payments for you.
Setting up and ending an ordinary power of attorney
There is a standard form of wording you need to use for an ordinary power of attorney. To set one up get advice from a solicitor or ask a legal adviser at Citizens Advice to help you. You can contact The Law Society to find a solicitor.
To end an ordinary power of attorney, you need to issue a written statement called a deed of revocation – ask a legal adviser for help with this.
Lasting power of attorney
A lasting power of attorney (LPA) gives someone else the authority to help you make decisions, or to make them on your behalf if you lose mental capacity. You can only set one up while you have mental capacity.
There are two types of LPA:
- property and financial affairs
- health and welfare.
You can have the same attorney for both types but you have to apply on different forms for each type. You can also appoint different people as attorneys.
Property and financial affairs LPA
This allows your attorney to make financial decisions and take financial actions for you, such as:
- paying your mortgage
- managing your bank account
- paying bills
- arranging repairs to your property
- selling your home.
You can choose which decisions your attorney can make. The LPA for property and financial affairs can be used while you still have mental capacity if you wish. Your attorney must keep their own money separate and keep accounts of how they use your money.
Health and welfare LPA
This LPA can only be used once you have lost mental capacity. It covers decisions relating to your care, such as:
- where you should live
- your medical care
- your social care
- your diet
- who you should have contact with.
When setting up a LPA for health and welfare, you will need to decide if you also want to allow your attorney to make decisions about life-saving treatments.
Setting up and ending a lasting power of attorney
You need to complete an official form from the Office of the Public Guardian (OPG). It must then be registered with the OPG to be valid.
The LPA must be signed by an independent third party (a certificate provider) to confirm that you:
- have the mental capacity to set it up
- haven’t been put under pressure to create it.
A certificate provider could be someone you know well or a professional, such as a doctor, solicitor or social worker.
You'll need to complete separate forms if you want to set up a financial decisions LPA and a health and welfare LPA. It costs £82 to register each LPA, but reductions or exemptions may be available if your income is low or you’re receiving certain benefits.
You can cancel an LPA while you still have mental capacity. You’ll need to issue a deed of revocation to do this. Gov.uk has information on how to end an LPA.
If you have any concerns about how an attorney is acting on behalf of someone else, contact the Office of the Public Guardian.
What happens if I don’t set up a power of attorney?
If you lose mental capacity in the future and you haven’t set up a lasting or enduring power of attorney, the Court of Protection can appoint a deputy to make decisions on your behalf.
Someone who wants to make decisions for you can apply to the Court of Protection to become a deputy for either or both:
- property and financial affairs decisions
- health and welfare decisions.
You will usually have to pay fees to become a deputy, although help is sometimes available to pay these.
The role of deputy is similar to that of an attorney. A deputy will be supervised by, and required to submit reports to, the Office of the Public Guardian. Gov.uk has more information.
Read our factsheet Managing my affairs if I become ill for more information on your options.
For information about applying for an LPA, contact the Office of the Public Guardian (OPG). The OPG also produces a leaflet, Who needs a lasting power of attorney, which explains the benefits of setting one up.