What is power of attorney? An easy guide
Compliance Assurance Manager
Last updated 29th March 2023
7 min read
When making end of life plans, it's normal to focus on making sure loved ones are provided for. What's harder to think about (but equally important) is what would happen to you if you were no longer able to make decisions for yourself.
Building power of attorney into your future plans will better prepare you for whatever life throws at you.
This simple guide will outline everything you need to know about lasting power of attorney, the different types available and how to set one up.
- What is power of attorney?
- Types of power of attorney
- What are the two types of lasting power of attorney?
- When would someone need power of attorney?
- What is mental capacity?
- Who can be made an attorney?
- How do you give someone lasting power of attorney?
- How much are the fees to set up a lasting power of attorney?
- How do I make changes to my power of attorney?
- Cancelling power of attorney
- What if I lose capacity and don't have a power of attorney?
- Start planning today
What is power of attorney?
A power of attorney is a legal document that allows someone to make decisions for another person who is no longer able or wanting to make their own.
There are different types of power of attorney, which we have detailed below.
Types of power of attorney
Ordinary power of attorney
Ordinary power of attorney gives someone the authority to look after your financial affairs for a period of time. For example, if you're physically ill or abroad for a long time.
An ordinary power of attorney is automatically withdrawn if you lose mental capacity.
Lasting power of attorney (LPA)
Lasting power of attorney gives someone the authority to look after your affairs and make decisions for you, if, in the future, you become unable to or choose not to. For example, after a dementia diagnosis. A lasting power of attorney must be set up while you have the mental capacity to do so. More on this on the Gov.uk website(opens in a new tab).
Enduring power of attorney (EPA)
Enduring power of attorney was replaced by LPA in 2007, though an EPA will still be valid if you signed it before October 2007. Similar to LPA, EPA gives the appointed person the power to look after your financial affairs and make decisions for you. However, an LPA is much more flexible. You can learn more about EPAs on the Gov.uk website(opens in a new tab).
What are the two types of lasting power of attorney?
There are two types of LPA: one covers health and welfare, and the other covers property and financial affairs.
You're able to set up more than one power of attorney, with up to four attorneys appointed who can act alone or together (with your permission).
Health and welfare LPA
Lasting power of attorney for health and welfare gives someone the authority to make a range of decisions relating to your care on your behalf. From what you should eat or wear, to very important decisions, such as the medical treatment you receive.
A health and welfare LPA only comes into force at the point when you can no longer make these decisions for yourself.
Property and financial affairs LPA
Lasting power of attorney for property and financial affairs gives someone the authority to make a range of decisions about your money and property. This includes things like collecting your benefits, paying your bills and selling your home.
With your permission, a property and financial affairs LPA can be used as soon as it's registered.
When would someone need power of attorney?
You might need a power of attorney for a few reasons.
It could be a temporary situation, for example if you're in hospital and need someone to help you look after things in day to day life such as paying utility bills or speaking to your bank.
Or, it could be a long-term thing, for example if you are diagnosed with dementia or another illness that could affect your mental capacity. This could mean that you lose the ability to make your own decisions in the future.
Illnesses such as dementia, a stroke or serious injury can affect anyone's mental capacity at any time and at any age.
Also, if you're married or in a civil partnership, the right to make decisions on your behalf is not given to your partner automatically.
That's why it's worth setting up a lasting power of attorney regardless of your age, your health or relationship. Life is unpredictable and no one knows what might happen in the future.
What is mental capacity?
Mental capacity means that you understand a decision that needs to be made, why you need to make it, and the likely outcome of your decision.
Depending on the circumstance, you might be able to make some decisions and not others. For example, someone might be able to choose something simple like what to wear for the day but might not understand the implications when choosing an insurance plan.
Who can be made an attorney?
When appointing an attorney to act on your behalf, you can choose anyone so long as they:
- Are 18 or over
- Are capable of making decisions on your behalf
- Are not bankrupt (power of attorney can be taken away if an attorney becomes bankrupt)
If you do not have a friend or relative to appoint as an attorney, solicitors or banks can act as an attorney for you, though they may charge for these services.
How do you give someone lasting power of attorney?
You can make a lasting power of attorney (LPA) online or by using paper forms. Follow the below steps:
- Decide who you'd like to have lasting power of attorney.
- Talk to this person about your decision.
- Contact the Office of the Public Guardian(www.gov.uk opens in a new tab) to get the relevant LPA forms and an information pack which is also available on Gov.uk(opens in a new tab).
- Download the forms or fill them in online.
- Get the lasting power of attorney signed by a certificate provider. This person signs the document to confirm that you understand the decision you're making, and that you haven't been put under any pressure to sign it.
- The certificate provider must be someone you know well or a professional person such as a doctor, social worker or solicitor.
- You must register the LPA with the Office of the Public Guardian before it can be used.
Registering a lasting power of attorney
You must register your LPA while you still have the mental capacity to do so and it can't be used during the registration process which can take up to 20 weeks.
If you have already signed the LPA but lose mental capacity whilst the process is taking place, your attorney can register it for you.
The process is different in Scotland(www.publicguardian-scotland.gov.uk opens in a new tab) and Northern Ireland(www.nidirect.gov.uk opens in a new tab).
How much are the fees to set up a lasting power of attorney?
In England and Wales, there's a fee of £82 to register each LPA. If you decide to set up an LPA for property and financial affairs, as well as health and welfare, it will cost you a total of £164.
If you're on a low income, you may be eligible for a 50% discount, and if you're receiving certain benefits you won't have to pay anything at all.
How do I make changes to my power of attorney?
You can change or end a lasting power of attorney at any time as long as you have the mental capacity to do so. For example, if your relationship with an attorney changes.
Cancelling power of attorney
If you're not happy with how an attorney is acting, stay calm and know that you have support available.
You can raise your concerns with the Office of the Public Guardian, which has responsibility for monitoring attorneys and deputies and can investigate allegations of mistreatment or fraud. It can report concerns to another agency, such as the police or social services, if appropriate.
To speak to someone confidentially about your concerns of financial misuse or abuse, call the Hourglass (formally known as Action on Elder Abuse) helpline on 080 8808 8141.
What if I lose capacity and don't have a power of attorney?
If you lose the capacity to make your own decisions and you don't have a lasting power of attorney or enduring power of attorney, you will need to apply to the Court of Protection.
The Court of Protection will:
- Decide whether you have the mental capacity to make a decision
- Make an order relating to the health and care decisions or property and financial decisions of someone who lacks mental capacity
- Appoint a deputy to make decisions on behalf of someone who lacks mental capacity
Start planning today
To make sure you're prepared if you become unable to make decisions for yourself later in life, setting up a lasting power of attorney can give you and your family peace of mind. At a difficult and distressing time, it can provide a level of comfort to know that things are in place.
If you've found this guide helpful and you'd like to continue planning for your future, you may wish to explore the following services and guides: