What is power of attorney? An easy guide
When making end of life plans, we often focus on making sure loved ones are provided for. What's harder to think about is what would happen if you were no longer able to make decisions for yourself.
Prepare for whatever life throws at you by building power of attorney into your future plans.
This guide outlines everything you need to know about lasting power of attorney, 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?
What is power of attorney?
A power of attorney is a legal document. It allows someone to make decisions for another person who is no longer able or willing to make their own.
Types of power of attorney
Ordinary power of attorney
Ordinary power of attorney lets someone look after your finances for a while. For example, if you're physically ill or abroad for a long time.
An ordinary power of attorney is automatically removed if you lose mental capacity.
Lasting power of attorney (LPA)
Lasting power of attorney allows someone to make decisions for you in the future, if 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. But an EPA will still be valid if you signed it before October 2007. EPA gives someone the power to look after your finances 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 for health and welfare, and the other for property and finances.
You can have up to four attorneys. They can act alone or together (with your permission).
Health and welfare LPA
Someone with lasting power of attorney for health and welfare can make decisions about your care. This could include what you eat or wear, or the medical treatment you receive.
A health and welfare LPA only comes into force when you can no longer make these decisions for yourself.
Property and financial affairs LPA
Somone with lasting power of attorney for property and financial affairs can make decisions about your money and property. This includes things like collecting your benefits, paying your bills or 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 like paying 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 no matter your age, health or relationship. Life is unpredictable and no one knows what might happen in the future.
What is mental capacity?
Having 'mental capacity' means that you understand:
- a decision that needs to be made
- why you need to make it
- the likely outcome of your decision
You might be able to make some decisions and not others. For example, you might be able to choose what to wear, but not something more complex like which insurance plan is best for you.
Who can be made an attorney?
You can choose anyone to act as an attorney for you 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)
Solicitors or banks can act as an attorney for you. But 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 forms and an information pack. This is also available on Gov.uk(opens in a new tab). You can download the forms or fill them in online.
- Get the form signed by a certificate provider. This person confirms that you understand the decision you're making, and you haven't been pressured to sign it. The certificate provider must be someone you know well or a professional like a doctor, social worker or solicitor.
- Register the LPA with the Office of the Public Guardian.
Registering a lasting power of attorney
You must register your LPA while you still have the mental capacity to do so. It can't be used during the registration process, which can take up to 20 weeks.
If you have 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 does it cost to set up a lasting power of attorney?
In England and Wales, it costs £82 to register each LPA. Setting up an LPA for property and financial affairs, and for health and welfare, will cost £164 in total.
If you're on a low income, you may be eligible for a discount. And if you're receiving certain benefits you won't have to pay anything.
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 mental capacity. For example, if your relationship with an attorney changes.
Cancelling power of attorney
If you're not happy with how an attorney is acting, you have support available.
You can raise your concerns with the Office of the Public Guardian. It monitors attorneys and investigates claims of mistreatment or fraud. It can also report concerns to another agency, like the police or social services.
To speak to someone about concerns of financial misuse or abuse, call Hourglass (formally known as Action on Elder Abuse) on 080 8808 8141.
What if I lose capacity and don't have a power of attorney?
If you lose mental capacity and don't have a lasting or enduring power of attorney, someone will need to apply to the Court of Protection for you.
The Court of Protection can:
- Decide whether you have the capacity to make a decision
- Make an order relating to your health and care decisions or property and financial decisions
- Appoint a deputy to make decisions on your behalf
Start planning today
Setting up a lasting power of attorney early can give you and your family peace of mind. It makes sure you are prepared in case you lose capacity in future. At a difficult time, it can provide comfort to know that things are in place.
If you'd like to continue planning for your future, you may wish to explore the following services and guides:
Products and services from SunLife
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The thoughts and opinions expressed in the page are those of the authors, intended to be informative, and do not necessarily reflect the official policy or position of SunLife. See our Terms of Use for more info.