Power of attorney

 

A power of attorney is a legal document that lets you choose someone to make decisions for you.  

You can have more than one attorney. Your attorney could be a family member, a friend, your spouse, partner or civil partner. Alternatively they could be a professional, such as a solicitor.

There are different kinds of power of attorney and you can set up more than one. Powers of attorney have different names in different parts of the UK.
In England, a Lasting Power of Attorney (LPA) covers decisions about your financial affairs, or your health and welfare. These are two separate power of attorney documents. They come into effect if you lose mental capacity, or if you no longer want to make decisions for yourself. While you have capacity, you may be contacted by organisations to give your permission for your attorney(s) to act on your behalf.

Prior to October 2007 you could make an Enduring Power of Attorney (EPA) in England and Wales. Whilst these can no longer be made, existing EPAs are still valid and cover decisions in relation to your property and financial affairs, however an EPA doesn’t cover decisions in respect of your health and welfare.

An Ordinary Power of Attorney only covers decisions about your financial affairs and is also only valid while you have mental capacity. It’s suitable if you need cover for a temporary period such as if you are on holiday abroad.

In Scotland you can set up a Combined Power of Attorney to cover both financial and health decisions as one power of attorney document. If you just want the power of attorney to cover one of these areas then you’d either set up a Continuing Power of Attorney for financial and/or property decisions, or a Welfare Power of Attorney for health or personal welfare decisions.

A General Power of Attorney only covers decisions about your financial affairs and is also only valid while you have mental capacity. It’s suitable if you need cover for a temporary period such as if you are on holiday abroad. This is the same as an Ordinary Power of Attorney.

In Northern Ireland you can put in place an EPA that covers property and affairs. It isn’t possible to set up a power of attorney in Northern Ireland that covers health and welfare decisions. You can set up an Ordinary Power of Attorney, but like in the rest of the UK, they are only valid for as long as you have mental capacity.

 

What happens if I don’t have a power of attorney in place?

If you lose mentally capacity without having a power of attorney, your family members would need to apply to the courts to act for you. This is known as:

• A deputyship order in England and Wales
• A guardianship order in Scotland, and
• A controllership order in Northern Ireland.

However, this can take time – and it’ll cost money.

In England and Wales, a deputy is a person appointed by the Court of Protection to be legally responsible for you if you lack capacity to make decisions for yourself and there is no power of attorney. They will make decisions on your behalf. The central duty of your deputy will be to act in your best interests.

There are two types of deputy. A property and financial affairs deputy will do things like pay your bills (for example care home fees) or organise and receive your pension. A personal welfare deputy will make decisions about medical treatment and how you are looked after.

A deputy must be over 18 and is often a family member or friend, or possibly a solicitor although anyone can apply to the Court of Protection to be appointed. Where there is no suitable choice, the Court will appoint a public deputy.

It’s worth bearing in mind that a Court of Protection appointed deputy may have less power than someone appointed under a lasting power of attorney.

In Scotland, if you do not have a continuing power of attorney and/or welfare power of attorney and you are no longer able to make decisions for yourself, a guardianship ordercan be obtained from a Scottish court. It is also possible to get a one-off ‘intervention order’ for a specific purpose.

In Northern Ireland the Royal Courts of Justice can appoint a ‘controller’ under a controllership order to make decisions on behalf of someone who has lost mental capacity and there is no EPA.

 

Arranging a power of attorney – things to consider

When should I set up a power of attorney?

You have to make a power of attorney before you lose the ability to make decisions for yourself. That’s why it’s a good idea to plan ahead. A power of attorney only comes into force when you want it to or when you can no longer make important decisions.

It’s a good idea to make a power of attorney that lasts beyond the point that you lose mental capacity if you’ve been diagnosed with an illness which might affect your ability to make decisions for yourself, or you think you may lose your mental capacity in the future - because of illness or mental health issues.

 

Who do I want to make decisions for me?

When you’re setting up a power of attorney, the person you pick to handle your affairs is your ‘attorney’. It’s a good idea to appoint more than one, and there’s no limit to the number of attorneys you can have. You can also nominate replacement attorneys in case a nominated attorney dies or can’t act for you.

To set up a valid power of attorney arrangement, your attorney(s) must be:

• over 18 (over 16 in Scotland)
• in good mental health, and
• not bankrupt or subject to a debt relief order (if they’re appointed to a financial decisions power of attorney).

Good practice suggests that your attorney(s) should also include:

• someone you trust,
• your partner, and
• someone likely to be in good health in your later years.

If you’d like to appoint more than one attorney, you have three options. You can:

• Appoint attorneys to act together – so all of them have to sign any document.
• Appoint attorneys to act together or separately so that only one would need to provide a signature.
• Request that attorneys act together on some issues but independently on others.

 

What types of decisions do I want my attorneys to make?

Whichever power of attorney you choose, always plan ahead for what powers you think your attorney(s) will need. It’s worth giving your attorneys sufficient powers to make all the decisions you think they’ll need to make for you. 

A financial power of attorney allows your ‘attorney(s)’ to make decisions regarding:

• bank accounts
• how your money is managed, and
• how your property and other financial affairs are handled.

They may also be responsible for paying your bills and collecting your:

• benefits
• pension, and
• any other income.

A health and welfare power of attorney covers decisions regarding:

• your daily routine
• medical treatment
• where you live, and
• any life-sustaining treatment.

Your attorney(s) can refuse or consent to treatment on your behalf. However, they can only do this if you’re no longer able to make your own decisions.

 

When do I want the power of attorney to start?

You might only want your power of attorney to be used once you’ve lost capacity to act for yourself. If this is the case, you should state this in your power of attorney document.

It’s also a good idea to add a statement regarding who should make any decisions about your mental incapacity. It could be your GP – or someone else you trust. You can name just one person who’ll make this decision if the time comes – or more than one person.

Judging whether someone has lost mental capacity

If you think someone may be losing or has lost mental capacity, the law requires you to start with a presumption of mental capacity. The first step is to help people to continue to make their own decisions.

According to the Office of the Public Guardian, ‘incapable’ means being unable to do the following for yourself:

• act to handle your affairs
• make decisions
• communicate decisions
• understand decisions, or
• retain memory of decisions.

You can find out more about mental incapacity on the NHS website. Citizens Advice also provides information to help you judge if someone has lost mental capacity.

Consider legal advice

A power of attorney is an important legal document. That’s why it can be a good idea to take legal advice before setting one up, especially if your situation is complex. Many solicitors charge a flat fee for arranging a power of attorney so you’ll know exactly what it will cost to set up.

If you don’t have a trusted solicitor, you can contact Solicitors for the Elderly. This national, independent network provides specialist legal advice for older people, their families and carers.

Who can certify copies of a power of attorney?

Your attorney will need to be able to prove that they are authorised to act on your behalf. In order to do this they will need to show the original or a copy of the power of attorney document.

Most organisations will ask for a 'certified' copy. Legislation sets out that a copy can be certified by a solicitor, stockbroker or a notary. It also allows you as the 'donor' (the person giving the power of attorney) provided you have mental capacity, to certify copies. Professionals can charge to certify the power of attorney, so it can be useful to create a few certified copies yourself once your power of attorney is registered.

Some organisations will also accept copies certified by others, such as accountants or financial advisers.

 

Existing enduring power of attorney

In England and Wales, it’s no longer possible to set up an enduring power of attorney (EPA), although it is in Northern Ireland. However, any existing EPA set up before 1 October 2007 can continue unless it's been revoked or replaced.

If the donor loses, or starts to lose mental capacity, the LPA document needs to be registered with the Office of the Public Guardian. You can find out more information about this at gov.uk. 

Power of attorney – Northern Ireland

If you create an EPA in Northern Ireland your attorney(s) can use their powers immediately after the EPA is signed. While you have capacity, you may be contacted by organisations to give your permission for your attorneys to act on your behalf. An LPA only needs to be registered if you lose mental incapacity. You can, however, specify that the EPA is to be used only if you lose mental capacity in the future.

If the attorney(s) believes you have lost or are losing mental capacity, they must register the EPA with the Office of Care and Protection.

How much does it cost to register an EPA in Northern Ireland?

Registering an enduring power of attorney with the Office of Care and Protection in Northern Ireland costs £151.

Arranging an EPA in Northern Ireland

It is advisable to seek legal advice as careful consideration should be given to the range of powers you wish to give to your attorney. These should also be agreed with your attorney.

A solicitor will help ensure all the necessary paperwork is completed and registered with the Office of Care and Protection, as the process is not straightforward. An EPA is a powerful legal document and it must follow the exact format specified by the Enduring Powers of Attorney regulations (Northern Ireland). If you don’t have a solicitor, you can contact Solicitors for the Elderly.

Registering your EPA

EPAs need to be registered with the High Court (Office of Care and Protection) if you lose or are losing mental capacity.

You can find out more about arranging an enduring power of attorney in Northern Ireland from the Office of Care and Protection (Northern Ireland) website.

Lasting power of attorney – England and Wales

Step-by-step guide to arranging a LPA

The following steps provide a basic outline of what’s involved, but it’s advisable that you contact the Office of the Public Guardian for further information.

Step 1: Decide whether you’ll do it yourself or appoint a solicitor to act for you

If you don’t have a solicitor, you can contact Solicitors for the Elderly.

Alternatively, you can make and register a lasting power of attorney yourself, either:

• online, or
• by filling in an application form and sending it by post.

If you’re using the online service, you can save your progress as you go along. This means you don’t need to complete the process in one go.

To request copies of the forms from the Office of the Public Guardian, call 0300 456 0300 Monday, Tuesday, Thursday, Friday, 9am to 5pm or Wednesday, 10am to 5pm. (textphone: 0115 934 2778).

Step 2: Choose your attorney(s)

When appointing your attorneys consider how many attorneys you’d like:

• think about the types of decisions they’ll need to make
• whether you’d like them to act together or separately (you can vary this by the type of decision), and
• ensure they meet the legal requirements.

Step 3: Complete the lasting power of attorney forms

Make sure you use the correct form for the type of LPA you’re making (either property and financial affairs, health and welfare or both). If you’re making both types, you’ll need to complete two sets of forms.

Whether you’re using paper or online forms, you have to name your attorneys and say whether you want them to act together or independently. There’s also room to specify restrictions and conditions, for instance, whether the lasting power of attorney should come into effect immediately or only if you’re unable to make decisions for yourself.

Step 4: Arrange certification

A lasting power of attorney must include a certificate to be valid. This is an important safeguard.

The person providing the certificate is responsible for confirming that you:

• understand what’s happening in setting up your lasting power of attorney, and
• aren’t being made to do this against your will.

They must either:

• have relevant professional skills, such as a doctor or lawyer
• have known you well for at least two years, such as a friend or colleague

Step 5: Apply to register your lasting power of attorney

In England and Wales it costs £82 to register each LPA (either property and financial affairs, health and welfare or both). You may be eligible for a fee reduction if you earn less than £12,000 a year. And, if you receive means-tested benefits you might be exempt from paying the fee.

Remember to send the registration and application fee for each lasting power of attorney.

Your lasting power of attorney can list up to five other people you’ve chosen to be notified before it’s registered. These people will be contacted before it can be registered with the Office of the Public Guardian and then have three weeks to raise any concerns.

You can find out about the process for objecting to registration of a power of attorney at gov.uk.

Step 6: Application is checked and held to allow objections or concerns to be raised

If there are no mistakes in your application and no one raises any concerns, it can take up to 20 weeks to register.

Step 7: Make certified copies straightaway

To certify a LPA yourself, you can write the following text on the bottom of every page of the copy:

'I certify this is a true and complete copy of the corresponding page of the original lasting power of attorney.'

On the final page of the copy, you must also write:

'I certify this is a true and complete copy of the lasting power of attorney.'

You need to sign and date every page.

Step 8: Using lasting power of attorney

When the time comes to use the lasting power of attorney, your attorney will need to be able to prove that they are authorised to act on your behalf. To do this they’ll need to show the original or a certified copy of the lasting power of attorney document.

The Office of the Public Guardian also provide a facility for organisations to look up the key information regarding your power of attorney online. Your attorney can generate a code on the website and then send the code to the organisation.

The organisation can then look up details of the LPA online. This includes details of…

• You
• Your attorneys
• Whether your attorneys must act together or together and separately (known as ‘jointly’ or ‘jointly and severally’), or together for some decisions and separately for others.
• Any restrictions as to what attorneys are allowed to do on your behalf that you may have included in the document

Some organisations may still need to see the original or a certified copy of the power of attorney document, depending on what your attorney is asking them to do on your behalf.

 

Continuing Power of Attorney – Scotland

Step-by-step guide to arranging a power of attorney in Scotland

The following steps provide a basic outline of what’s involved, but it’s advisable that you contact the Office of the Public Guardian (Scotland) for further information.

Step 1: Consider taking advice from a solicitor

Most people in Scotland use a solicitor to create their power of attorney because it’s a powerful legal document and the process is not straightforward. If you don’t have a solicitor, you can contact Solicitors for the Elderly.

Alternatively, you can make a power of attorney yourself by purchasing a power of attorney pack from a stationers.  

Step 2: Decide who you want as your attorney

Consider how many attorneys you’d like. There is no limit on how many you can have.

Step 3: Decide what powers to give your attorney

• think about the types of decisions they’ll need to make
• whether you’d like them to act together or separately (you can vary this by the type of decision)

Step 4: Arrange for your power of attorney to be drafted

Most people use a solicitor so nothing is missed.

If you write the document yourself, it's important you refer to guidance to make sure your document gives your attorneys the necessary powers they may need to make decisions on your behalf. There is advice available, for example from the Office of the Public Guardian (Scotland) website.  

Before you can sign and date your power of attorney document, you must be interviewed by a Scottish solicitor or a registered UK medical doctor. The purpose of this interview is to confirm that you:

• understand what’s happening in setting up your power of attorney, and
• that you aren’t being made to do this against your will.

Step 5: Apply to register your power of attorney

Once drawn up, your power of attorney document must be registered with the Office of the Public Guardian (Scotland). This should be sent along with a registration form which the attorney must sign to confirm they're willing to act. 

You have to pay the £83 fee when you submit your power of attorney to the Office of the Public Guardian (Scotland).

You may be exempt from paying this fee if you receive certain state benefits. You can find out if you’re eligible for a fee exemption by visiting the Office of the Public Guardian (Scotland) website.

You can also use the online Electronic Power of Attorney Registration (EPOAR) website.

Step 6: Make certified copies straightaway

For more information on arranging power of attorneys in Scotland visit the Office of the Public Guardian (Scotland) website.

Can I end my power of attorney?

You can only cancel or revoke a power of attorney if you’re deemed capable of:

• making a decision to cancel it, and
• understanding your decision.

You can do this even after it’s registered. You can also complain if you’re concerned about how your attorney(s) carry out their duties.

Cancelling an unregistered power of attorney

If the power of attorney hasn’t been registered you can destroy it to cancel it, or you can sign a Deed of Revocation.

Cancelling a registered power of attorney

In England, Wales and Scotland, once you’ve registered your power of attorney, you’ll have to submit a Deed of Revocation along with the power of attorney to cancel it. Each jurisdiction has its own process, so contact the relevant body for advice on how to cancel a registered power of attorney.   

For help in England and Wales, call the Office of the Public Guardian on 0300 456 0300. Lines are open 9am to 5pm, Monday, Tuesday, Thursday and Friday and 10am to 5pm on Wednesday. Or you can email them at: customerservices@publicguardian.gsi.gov.uk 

For help in Scotland, call the Office of the Public Guardian on 01324 678 398. Lines are open 9am to 5pm, Monday to Friday. Or you can email them at: OPG@scotcourts.gov.uk

In Northern Ireland once your enduring power of attorney is registered, you can’t cancel or revoke it unless the Office of Care and Protection agrees. For more information about cancelling or revoking your registered enduring power of attorney, you can call the Office of Care and Protection on 0300 200 7812 Monday to Thursday. You can also email them at: OCP@courtsni.gov.uk