Power of attorney

When someone makes a power of attorney, they appoint someone else to act on their behalf. The person making the power of attorney is called a donor and the person appointed to act on their behalf is called an attorney.

A power of attorney gives the attorney the legal authority to deal with third parties such as banks or the local council.

Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else such as where they should live or whether they should see a doctor.

In order to make a power of attorney, you must be capable of making decisions for yourself. This is called having mental capacity – see under heading When does someone lack mental capacity?

There are three different types of power of attorney. These are:

Ordinary power of attorney – see under heading Ordinary power of attorney
Lasting power of attorney – see under heading Lasting power of attorney
Enduring power of attorney – see under heading Enduring power of attorney.
Ordinary power of attorney

If you want someone to look after your financial affairs for a long period of time, you can give them an ordinary power of attorney. You might want to give someone an ordinary power of attorney if:

you have a physical illness
you have an accident which leads to physical injury
you are abroad for a long period of time.
You should not use an ordinary power of attorney if:

you have been diagnosed with a mental health problem or other disease which can lead to mental incapacity
you think you may develop a mental health problem or other disease which can lead to mental incapacity.
This is because you won’t be able to continue using an ordinary power of attorney if you lose your mental capacity. Under these circumstances, it may be more appropriate to use a lasting power of attorney. For more information about a lasting power of attorney, see under heading Lasting power of attorney. For more information about mental capacity, see under heading When does someone lack mental capacity?

How to grant an ordinary power of attorney

You can give someone power of attorney to deal with all your financial affairs or only certain matters, for example, to operate a bank account, to buy and sell property or change investments. An ordinary power of attorney which only gives authority to deal with certain matters is also known as a limited power of attorney. If you want to make a limited power of attorney you should make sure that it is drawn up very carefully so that the attorney is very clear about what authority they have to deal with your affairs.

There is a standard form of words to use if you want to grant an ordinary power of attorney. If you want to grant an ordinary power of attorney, you should contact a solicitor or an experienced adviser, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.

Lasting power of attorney

What is a lasting power of attorney

If you want someone to look after your affairs for a long period of time, you can give them a lasting power of attorney (LPA). An LPA is different from an ordinary power of attorney because:

you can make an LPA which looks after your personal welfare, as well as one to look after your property and financial affairs
an LPA must be registered before it can be used
an LPA is intended for use by people who are at risk of losing their mental capacity – see below.
The LPA replaces the enduring power of attorney (EPA) – see under heading Enduring power of attorney.

When should I make an LPA?

You should make an LPA if you have been diagnosed with, or think you might develop, an illness which might prevent you from making decisions for yourself at some time in the future.

The kinds of illness which might prevent you from making decisions for yourself include:

dementia
mental health problems
brain injury
alcohol or drug misuse
the side-effects of medical treatment
any other illness or disability.
You must make an LPA whilst you are still capable of making decisions for yourself. This is called having mental capacity – see under heading When does someone lack mental capacity?

If you want to look after the affairs of someone who has already lost their mental capacity and does not already have either a registered LPA or an EPA, see under heading Who can make decisions when someone loses mental capacity and there’s no power of attorney?

Different types of Lasting Power of Attorney (LPA)

There are two different types of LPA:

A property and financial affairs LPA
A personal welfare LPA.
Depending on your personal situation, you could decide to make:

Only a property and financial affairs LPA
Only a personal welfare LPA
Both a property and financial affairs LPA and a personal welfare LPA.
You don’t have to make both types of LPA at the same time.

A property and financial affairs LPA can give someone the authority to deal with and make decisions about things like:

buying or selling property
bank, building society and other financial accounts
welfare benefits or tax credits
tax affairs
debts
legal proceedings.
You can give someone power of attorney to deal with all your property and financial affairs or only certain things, for example, to operate a bank account, to buy and sell property or change investments. If you want to make an LPA which only deals with certain matters, you should make sure that it is drawn up very carefully so that the attorney is very clear about what authority they have to deal with your affairs.

A property and financial affairs LPA must be registered before it can be used. However, you don’t have to wait until someone loses their mental capacity before using it. A property and financial affairs LPA will come into effect as soon as it is registered. This means that the attorney will be able to start making decisions about your property and financial affairs straight away, even if you are still capable of making your own decisions. If you don’t want the attorney to be able to make decisions about your affairs straight away, you should make sure that the LPA says this.

The LPA must always include authority for the attorney to make decisions once the donor has lost their mental capacity.

An LPA about personal welfare can give someone authority to deal with and make decisions about things like:

where you live
your day-to-day care, including what you wear and what you eat
your healthcare treatment
what contact, if any, you should have with certain other people
access to your personal information.
You can make a personal welfare LPA which deals with all aspects of your personal welfare, or only certain things.

It’s not possible to use a personal welfare LPA until the person who made it has lost their mental capacity. The LPA must be registered before it can be used.

There are rules about both types of LPAs. These rules make it clear who can take decisions on behalf of someone else, in which situations they can take these decisions and how they should go about it. The rules are designed to make sure that decisions are made in the best interests of the person who lacks mental capacity. go to the GOV.UK website at www.gov.uk.

How to make a lasting power of attorney

You must make an LPA whilst you’re still able to make decisions for yourself. You should choose the person who you want to look after your affairs very carefully. The person you choose to look after your affairs is called an attorney. See under heading General rules about power of attorney for more information about this.

You will need to fill in a form, which you can get from the GOV.UK website at www.gov.uk. There is one form for a property and affairs LPA (LPA PA)and a different form for a personal welfare LPA (LPA PW). If you want someone to look after your financial affairs and your personal welfare, you will need to make two separate LPAs and fill in both forms.

There are notes which come with the forms which tell you exactly what to do. You should read these very carefully.

Once you’ve filled in these forms, you will need to register the LPA with the Office of the Public Guardian. If you’re the donor and you still have mental capacity, you can apply to register the LPA yourself. The person named as your attorney can also apply to register the LPA. They can do this at any time, whether you have lost mental capacity or not.

When you make an LPA, you can request that certain people should be notified when the LPA is registered. This helps to protect you against fraud and being pressurised into making the LPA. You should use form LP 001 to notify the people named in your LPA, before you apply to register it.

To register the LPA, you should fill out form LPA 002. Send this to the Office of the Public Guardian along with your LPA form and the registration fee. If you make both types of LPA, you will need to pay two lots of fees. Some people don’t have to pay any registration fees. You can find out the latest information about fees on the GOV.UK website at www.gov.uk.

If the LPA has been correctly completed and there are no objections to the registration after people have been notified, the Public Guardian must register it. They must do this after three weeks. The Public Guardian must notify the donor and any attorneys that they have registered the LPA.

How to end a lasting power of attorney

There are a number of ways to bring an LPA to an end. These include:

the person who made the LPA (the donor) can cancel it. They can only do this if they still have mental capacity
the attorney can say they no longer want to be an attorney. They must do this on form LPA 005 which is sent to the donor, the Office of the Public Guardian, and any other attorneys.
An LPA will also come to an end when the donor dies. A property and financial affairs LPA will come to an end if either the donor or an attorney becomes bankrupt.

Enduring power of attorney

What is an enduring power of attorney

Before 1 October 2007, it was possible to make an enduring power of attorney (EPA) to manage someone’s property or financial affairs. An EPA could be used before someone lost their mental capacity or after they lost their mental capacity once the EPA had been registered.

It is no longer possible to make a new EPA. However, if an EPA was made before 1 October 2007, it can still be registered and, if it is already registered, it will still be valid.

If you want to manage the affairs of someone who you think might lose their mental capacity and you don’t already have an EPA, a lasting power of attorney should be used.

Even if you already have an EPA, it can only be used to look after someone’s property and financial affairs, not their personal welfare. If you want power of attorney to look after someone’s personal welfare, you may be able to take out a personal welfare lasting power of attorney.

For information about lasting power of attorney, see under heading Lasting power of attorney. For information about mental capacity, see under heading When does someone lack mental capacity?

Registering an enduring power of attorney

To continue using an EPA after someone has lost their mental capacity, the EPA must first be registered with the Office of the Public Guardian. The EPA must be registered by the person who will be managing someone else’s affairs (the attorney). Before you register the EPA, you must notify certain people that you are going to register it. This is done on a form which you must send to all the following people:

the person whose affairs you are going to manage (the donor)
any other attorneys if there are more than one
at least three of the donor’s nearest relatives.
Once you have given this notice, you can apply to register the EPA on form EP2PG to the Office of the Public Guardian. There is a registration fee, although some people won’t have to pay it. You can find out the latest information about fees from the Ministry of Justice website at www.justice.gov.uk.

How to end an enduring power of attorney

There are a number of ways to bring an EPA to an end. These include:

the donor can cancel it. They can only do this if they still have mental capacity
an attorney can say they no longer want to be an attorney
with a court order
the Court of protection can end an EPA if they think an attorney abused their position or if they think a donor made the EPA because of fraud or excessive pressure.
Can I change an enduring power of attorney to a lasting power of attorney?

If you have made an EPA but want to have an LPA instead, you can do this. If the EPA is not registered, you can just destroy it. You can then complete an LPA form and apply for this to be registered – see under heading Lasting power of attorney. Unlike an EPA, an LPA is not valid unless it has been registered.

Alternatively, you could keep your EPA but make and register an LPA to deal with your personal welfare in case you lose your mental capacity. EPAs can’t be used to look after someone’s personal welfare.

General rules about power of attorney

There are some general rules which apply to all the different types of power of attorney, including Ordinary power of attorney, Lasting power of attorney and Enduring power of attorney.

Who can make a power of attorney

The person making a power of attorney is called a donor. In order to make a power of attorney, you must be capable of making decisions for yourself. This is called having mental capacity – see under heading, When does someone lack mental capacity? You can only make a power of attorney which allows someone else to do things that you have a right to do yourself.

No one else can make a power of attorney for you. You can instruct a solicitor to draft a power of attorney for you, but the solicitor should only accept instructions or authorisation from you, whether in person or in writing. They should not accept instructions or authorisation from anyone else, including the person who is to become your attorney.

Who can be an attorney

The person appointed to act on behalf of the donor is called an attorney. Anyone can be an attorney, as long as:

they are capable of making decisions, and
they are 18 or over.
In some cases, someone who is bankrupt can’t be an attorney. If an attorney becomes bankrupt, power of attorney may be taken away.

Solicitors and trust corporations such as banks can act as an attorney. Professional attorneys can charge for their services. If your attorney is a friend or relative, they can get back out-of-pocket expenses, but they can only get paid for carrying out their duties if the donor has agreed to this on the LPA form.

Can there be more than one attorney

A donor can appoint more than one attorney. This can work in one of two ways:

Attorneys appointed to act together (also known as joint attorneys) – this means they must always act together. The advantage of this arrangement is that it makes it harder for an attorney to commit fraud or do something against the interests of the donor. The disadvantage, is that the whole power of attorney comes to an end if one attorney dies or becomes mentally incapable.

Attorneys appointed to act together and independently (also known as joint and several attorneys) When attorneys are appointed in this way, it means that the signature or action of one attorney is as valid as if they were the only attorney. It also means that the power of attorney will continue in force if anything happens to one of the attorneys.

Responsibilities of an attorney

When you are appointed as an attorney, you are placed in a position of trust and you must always act in the best interests of the donor.

You can only do the things the donor has authorised you to do. You can’t ask anyone else to carry out any of your duties, unless the donor has authorised you to do so.

You must keep separate up-to-date accounts of the donor’s financial affairs. When you are acting on the donor’s behalf and have to sign any documents, you should sign your usual signature and add, beneath the signature, the words Attorney for … (donor’s name).

If you’re acting under a lasting power of attorney, there are rules about how to make a decision for a donor who has lost their mental capacity which you must follow. You can find guidance on the Age UK website at www.ageuk.org.uk PDF .

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