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This guide explains what a power of attorney is, why it matters, and how to set one up to ensure your wishes are followed if you're unable to make decisions yourself.
Table of contents
Use the table of contents links to move directly to each section of the guide.
What is power of attorney?
There may come a time when you no longer want or are able to make financial or other decisions for yourself. A power of attorney (POA) enables you to give one or more trusted friends or family members the legal authority to make decisions on your behalf, during your lifetime. This power automatically ceases on your death.
The POA lists all the specific powers you wish these people (your attorneys) to have.
Why have a power of attorney?
POA is not just for older and wealthier people anyone can benefit from having one. Imagine a situation where your health failed suddenly or you had a serious accident and were unable to make decisions. Having a POA in place would help your relatives immensely at a difficult time.
If you don t have a POA in place and you lose the ability to make your own decisions, your family or friends would have to go to court to get authority to make decisions on your behalf. This can be a costly, complicated and time consuming process. It is easier if you have already set up a POA that can be used.
The person who makes the POA is called the donor and those who act for them are attorneys.
Attorney's duties
Attorneys must:
- act in the donor's best interest and take reasonable care when making decisions on their behalf
- act within the terms of the POA
- keep the donor's finances and possessions separate from their own
- keep records and accounts.
Power of attorney in England and Wales
In England and Wales there are two main types of lasting power of attorney (LPA):
- a property and financial affairs lasting power of attorney and
- a health and welfare lasting power of attorney.
Property and financial affairs
A property and financial affairs LPA covers all aspects of someone's financial wellbeing.
An attorney could find themselves making or helping the donor to make decisions regarding their bills, savings and property. They could find themselves managing the donor's bank accounts, making certain occasional gifts on their behalf or even selling property.
The donor can choose when the property and financial affairs LPA can be used and how. For example, you can give your attorney authority to start making decisions for you right away, at a particular time for a set period, or only once you're no longer able to make decisions yourself.
Health and welfare
With a health and welfare LPA the attorney makes, or helps the donor to make, decisions around how they are cared for. This could include anything from where they live, how they are cared for and even the day-to-day things such as what they eat. If you need extra support for instance carers to come in during the day then this would fall under the remit of a health and welfare LPA.
Such arrangements can also contain information regarding whether you would receive or reject particular types of treatment and the person acting as an attorney must ensure they understand your wishes.
A health and welfare LPA only takes effect once you're no longer able to make decisions yourself.
How to make an LPA
There are three steps to making an LPA:
- Choose your attorney/s. If someone agrees to be your attorney they must keep records of all the important decisions they make for you.
- Fill in the relevant forms (or create online) and get them signed and properly witnessed.
- Register your LPA and pay the registration fee (currently £82).
You must have mental capacity at the time you set up the LPA (which means you must understand what you're doing and the consequences of having a LPA). To make sure no one has forced you into signing an LPA, when you complete the forms you will appoint a person to be a certificate provider. This is someone who confirms you know what you're signing and understand the powers it will give your attorneys.
As another safeguard, you can name people who should be informed when an application is made to register your LPA. These should be people who have your best interests at heart and who would speak up to object to the registration if they had any concerns.
You can either pay a solicitor to fill in the forms for you, complete the forms online yourself, download the forms and complete them by hand or ask for the forms to be sent to you by post by phoning the Office of the Public Guardian on 0300 456 0300.
An LPA can only be used once it's been registered with the Office of the Public Guardian. The donor or attorneys can apply to register the LPA (if the attorneys apply to register it, the donor will be notified and can object if they want to).
You have to pay a fee to register each LPA application unless you receive certain state benefits. If you are on a low income (below £12,000) you only pay half the fee. If you think you may be entitled to a fee reduction or waiver you'll need to complete form LPA120A.
Power of attorney in Scotland
In Scotland there are three main types of power of attorney. These are:
- Continuing power of attorney which allows your attorneys to make decisions for you about your money and/or property. This can include paying bills or managing your savings and investments or arranging repairs to your home or buying/selling property.
- Welfare power of attorney which covers your health or personal welfare. This can include choosing where you live, what you eat and who you see as well as what medical treatment you receive.
- Combined power of attorney which enables your attorneys to make both financial and welfare decisions for you.
To make a power of attorney:
- Choose your attorney/s – you can have as little as one attorney or up to as many as you choose. Your attorneys must confirm they are willing to act for you. Your attorneys must keep records of their actions.
- Draft your power of attorney. You can either use a solicitor or another professional, or you can draw up your own power of attorney. Most solicitors can help you do this and will give you legal advice. If you want to do your own power of attorney, some stationery shops sell power of attorney packs which can be used. But if you do this, make sure you look at the guidance available on the Office of the Public Guardian website to avoid any costly mistakes.
- Have your power of attorney properly witnessed. You will need to be interviewed by either a solicitor or medical practitioner to assess that you fully understand what you are doing. If they are satisfied with this, they will complete and sign a certificate confirming this.
- Register your power of attorney with the Office of the Public Guardian (Scotland) and pay the registration fee (depending on your circumstances you may be exempt from this). Your solicitor may do this for you or you can do it yourself. If you submit the documents electronically the process is often quicker than if you send them by the post.
Power of attorney in Northern Ireland
In Northern Ireland there are two main types of power of attorney:
- General POA which allows your attorney to make decisions for you about your money and/or property normally for a limited period. The general POA can only be used if the donor has mental capacity, and if the donor becomes mentally incapable it ceases and
- Enduring POA which allows your attorney to make decisions for you about your money and/or property once you become mentally incapable.
To make an Enduring power of attorney:
- Choose your attorney(s) - you can choose one or more attorney(s)
- Completion your power of attorney - you can either use a solicitor, purchase from a stationery shop or download from the Law Society of Northern Ireland. You should make sure that the most up-to-date version is used to avoid costly mistakes.
- Have your power of attorney properly witnessed you will need to sign the form and get your signature witnessed by two independent adults.
- When you are no longer able to manage your affairs your attorneys need to register the power of attorney with the Office of Care and Protection and pay the registration fee (depending on your circumstances you may be exempt from this).
Where to find out more
England and Wales
You can find out more about lasting power of attorney at GOV.UK Power of Attorney.
You can use the government’s online service to create your lasting power of attorney at GOV.UK Make a lasting power of attorney.
You can download the lasting power of attorney forms to complete by hand at GOV.UK LPA forms.
Find out about the role of an attorney at GOV.UK duties.
To claim a reduction in the lasting power of attorney registration fee GOV.UK fees.
Scotland
You can find out more about power of attorneys at:
To claim a reduction in the power of attorney registration fee visit Office of the Public Guardian Scotland fee exemption.
Northern Ireland
You can find out more about power of attorneys at:
To claim a reduction in the enduring power of attorney registration fee visit Department of Justice.
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