Power of Attorney (PoA) is a legal document that allows an individual, known as the ‘donor,’ to appoint one or more people, referred to as ‘attorneys,’ to manage their affairs if they become unable to do so themselves. This can include making decisions about finances, healthcare, and property.
Given the potential for mental incapacity due to illness or age, having a PoA in place provides peace of mind and security, both for the donor and their loved ones.
With a valid PoA, you can ensure your wishes are respected, and your affairs are handled properly, should you no longer have the capacity to make decisions yourself.
In this guide, we set out the current legal framework for Power of Attorney in the UK, with practical guidance on how to create a PoA and what to do if you need to make changes to an existing PoA to reflect your circumstances.
Section A: What is Power of Attorney?
Power of Attorney (PoA) is a legal instrument that empowers an individual, known as the ‘donor’ or ‘principal,’ to designate one or more people, known as ‘attorneys’ or ‘agents,’ to act on their behalf. This delegation of authority can be vital in situations where the donor becomes incapable of making informed decisions due to illness, injury, or cognitive decline.
Power of Attorney is a formal legal document granting one person (the attorney) the authority to act for another person (the donor) in specified or general matters, such as handling bank accounts, managing investments, buying or selling property, and making healthcare decisions.
The general purpose of a Power of Attorney is to ensure that an individual’s personal and financial affairs are managed in accordance with their wishes when they are unable to do so themselves. This can be due to temporary situations, such as travel or short-term illness, or more permanent circumstances, like dementia or severe physical incapacity.
Section B: Types of Power of Attorney in the UK
In the UK, there are different types of Power of Attorney (PoA) designed to cover various aspects of an individual’s life in situations where they may become unable to make decisions for themselves. These are Lasting Power of Attorney (LPA), Ordinary Power of Attorney, and the historical Enduring Power of Attorney (EPA). Each serves a unique purpose and offers different levels of authority and protection.
1. Lasting Power of Attorney (LPA)
Lasting Power of Attorney (LPA) is a legal document that allows an individual (the donor) to appoint one or more attorneys to make decisions on their behalf if they lose mental capacity. LPAs are divided into two categories, each addressing different aspects of the donor’s life.
a. Health and Welfare LPA
A Health and Welfare LPA enables the appointed attorney(s) to make decisions about the donor’s personal health and welfare. This can include medical treatment options and decisions, decisions about moving into a care home, day-to-day care and routine matters, such as diet and daily activities and giving or refusing consent to life-sustaining treatment.
This type of LPA only comes into effect when the donor is deemed to lack the mental capacity to make these decisions themselves.
b. Property and Financial Affairs LPA
A Property and Financial Affairs LPA allows the attorney(s) to manage the donor’s financial and property matters. This can include managing bank accounts, paying bills, collecting benefits or pensions, buying or selling property and managing investments.
Unlike the Health and Welfare LPA, this type can be used as soon as it is registered, with the donor’s permission, even if the donor still has mental capacity.
2. Ordinary Power of Attorney
An Ordinary Power of Attorney is used for a specific period or purpose and is only valid while the donor has mental capacity. It is typically used when the donor needs someone to handle their financial affairs for a limited time, such as during an extended trip abroad or during a period of hospitalisation. It does not cover health and welfare decisions and becomes invalid if the donor loses mental capacity.
3. Enduring Power of Attorney (EPA)
Enduring Power of Attorney (EPA) is a legal document that was replaced by the LPA system in October 2007 but remains valid if made before 1 October 2007. EPAs specifically cover property and financial affairs and continue to be effective if the donor loses mental capacity, provided they were registered with the Office of the Public Guardian (OPG) when the donor began to lose capacity. Unlike LPAs, EPAs do not cover health and welfare decisions; they relate only to property and financial matters.
Section C: Legal Framework for Power of Attorney in the UK
The legal framework surrounding Power of Attorney (PoA) in the UK is designed to protect the rights and interests of individuals who may need someone to manage their affairs, whether due to temporary incapacity or permanent mental decline. This framework is primarily governed by the Mental Capacity Act 2005, which establishes the rules and principles for creating and using PoA documents.
1. Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) is the cornerstone of the legal framework for PoA in the UK. This act provides a comprehensive legal structure for making decisions on behalf of individuals who lack the mental capacity to make decisions themselves.
The MCA is founded on five key principles:
a. Presumption of capacity: Every adult has the right to make their own decisions unless it is proven otherwise.
b. Right to be supported in making their own decisions: Individuals should receive all appropriate help before anyone concludes that they cannot make their own decisions.
c. Right to make unwise decisions: Individuals have the right to make decisions that others might consider unwise or eccentric.
d. Best interests: Any decision made on behalf of someone else must be in their best interests.
e. Least restrictive option: Any action taken on behalf of someone who lacks capacity should be the least restrictive of their rights and freedoms.
The MCA also introduced LPAs, which replaced the previous Enduring Power of Attorney (EPA). LPAs allow individuals to appoint attorneys to make decisions about their health, welfare, property, and finances.
The Office of the Public Guardian (OPG) was also established under the MCA. The OPG oversees the registration of LPAs and EPAs and supervises deputies appointed by the Court of Protection.
2. Key Regulatory Bodies and Their Roles
Several key regulatory bodies are involved in the administration and oversight of Power of Attorney in the UK:
a. Office of the Public Guardian (OPG)
The OPG is responsible for registering LPAs and EPAs, maintaining a register of these documents, and providing oversight to ensure that attorneys and deputies act in the best interests of the individuals they represent.
The OPG offers guidance on the creation and use of PoAs, investigates complaints about attorneys, and provides information to the public about safeguarding vulnerable individuals.
b. Court of Protection
The Court of Protection makes decisions on financial or welfare matters for people who cannot make decisions for themselves due to a lack of mental capacity.
The court can appoint deputies to make decisions on behalf of individuals, resolve disputes regarding PoAs, and provide rulings on complex issues related to mental capacity.
c. Care Quality Commission (CQC)
The CQC is an independent regulator of health and social care in England. While not directly involved in PoA, the CQC ensures that health and social care providers adhere to standards that protect individuals who may be under a PoA arrangement.
The CQC inspects and rates care providers, ensuring they meet the necessary standards for quality and safety, which indirectly supports the well-being of those under PoA.
d. Solicitors for the Elderly (SFE)
SFE is a national organisation of lawyers who specialise in legal services for older people and their families.
SFE provides expert advice on PoAs, ensuring that individuals receive knowledgeable support when creating these documents.
Section D: Setting Up a Power of Attorney
In the UK, creating a Lasting Power of Attorney (LPA) involves several steps, including meeting eligibility criteria, completing the necessary forms, certifying the document, and registering it with the Office of the Public Guardian (OPG). This process ensures that the appointed attorney has the legal authority to act on the donor’s behalf in accordance with their wishes.
1. Eligibility Criteria for Attorneys and Donors
To create a Lasting Power of Attorney (LPA), the donor must meet certain eligibility criteria. Firstly, the donor must be at least 18 years old. This age requirement ensures that the individual is legally recognised as an adult, capable of making binding decisions. Additionally, the donor must have the mental capacity to understand the implications of creating an LPA at the time it is made. Mental capacity means the donor can comprehend the nature and effects of the LPA, the powers they are granting, and the consequences of these decisions.
The eligibility criteria for attorneys are also clearly defined. Attorneys must be at least 18 years old to ensure they are legally recognised adults. They must possess the mental capacity to make decisions on behalf of the donor, meaning they understand the responsibilities and implications of their role. Furthermore, attorneys appointed for a Property and Financial Affairs LPA should not be bankrupt or subject to a debt relief order. This is to ensure they are financially responsible and capable of managing the donor’s affairs effectively.
While there are no specific restrictions on who can be an attorney, it is highly advisable to choose someone trustworthy and capable of handling the responsibilities. Selecting a reliable person helps ensure that the donor’s best interests are always prioritised and that their affairs are managed competently.
2. Steps to Create an LPA
To create a Lasting Power of Attorney (LPA), the donor must complete the appropriate forms. There are two types of LPA forms: one for Health and Welfare, and another for Property and Financial Affairs. These forms can be obtained from the Office of the Public Guardian (OPG) or completed online.
The LPA form is divided into several sections. Part A requires details about the donor and the attorney(s), including personal information and the type of LPA. Part B outlines the donor’s preferences and instructions, specifying any particular wishes or restrictions for the attorney(s). Part C includes the signatures and witness statements of the donor, the attorney(s), and the certificate provider.
Certifying the LPA is an essential step to ensure that the donor understands the document and is not being coerced into signing it. The certificate provider can be a professional, such as a doctor or solicitor, who has the necessary expertise to confirm the donor’s understanding and lack of coercion. Alternatively, it can be someone who has known the donor for at least two years, provided they are not a family member or a potential attorney.
The LPA must be registered with the OPG before it can be used. The registration process involves several steps. First, the donor or the attorney(s) must submit the completed LPA form to the OPG, along with the required registration fee. Next, certain people must be notified about the LPA registration, which can include family members or other interested parties specified by the donor.
The OPG then reviews the application to ensure all legal requirements are met. If everything is in order, the OPG registers the LPA and provides a registration notice.
The entire registration process typically takes around 8 to 10 weeks, assuming there are no errors or objections.
Section E: Responsibilities and Duties of an Attorney
Appointed under a Power of Attorney (PoA), an attorney takes on significant responsibilities and duties to manage the affairs of the donor. These responsibilities vary depending on the type of PoA and the specific powers granted.
Regardless of the type of PoA, all attorneys have certain general responsibilities:
a. Act in the Donor’s Best Interests: Attorneys must always prioritise the donor’s welfare and interests above their own.
b. Follow the Donor’s Instructions: Attorneys should adhere to any specific instructions or preferences outlined by the donor in the PoA document.
c. Maintain Confidentiality: Attorneys must keep the donor’s personal and financial information confidential, sharing it only when necessary to perform their duties.
d. Avoid Conflicts of Interest: Attorneys should avoid situations where their personal interests conflict with those of the donor.
e. Act with Due Care and Skill: Attorneys are expected to act competently and diligently, making informed decisions on behalf of the donor.
f. Keep Records: Attorneys should maintain detailed records of their actions, including financial transactions and decisions made on behalf of the donor.
The specific duties of an attorney also vary based on whether they are appointed under a Lasting Power of Attorney (LPA) for Health and Welfare, an LPA for Property and Financial Affairs, or an Ordinary Power of Attorney.
1. Health and Welfare LPA
Under a Health and Welfare LPA, an attorney can make decisions about the donor’s personal health and welfare, but only if the donor lacks the mental capacity to make these decisions themselves. Specific duties include:
a. Healthcare Decisions: Making decisions about the donor’s medical treatment, including consenting to or refusing treatments and surgeries.
b. Living Arrangements: Deciding where the donor should live, such as choosing a care home or making arrangements for the donor to stay at home with support.
c. Daily Care: Making decisions about the donor’s daily routine, diet, and activities to ensure their comfort and well-being.
d. Life-Sustaining Treatment: If authorised by the LPA, the attorney can make decisions about giving or withholding life-sustaining treatment.
2. Property and Financial Affairs LPA
Under a Property and Financial Affairs LPA, an attorney can manage the donor’s financial and property matters. These duties can be performed as soon as the LPA is registered, with the donor’s permission, or only when the donor lacks mental capacity. Specific duties include:
a. Managing Finances: Handling the donor’s bank accounts, paying bills, and managing investments.
b. Property Transactions: Buying, selling, or renting property on behalf of the donor.
c. Collecting Income: Ensuring that the donor’s income, such as pensions, benefits, or rental income, is collected and properly managed.
d. Paying Taxes: Filing tax returns and ensuring that all taxes are paid on time.
e. Managing Debts: Handling any debts or financial obligations the donor may have.
3. Ordinary Power of Attorney
An Ordinary Power of Attorney is used when the donor still has mental capacity but needs someone to handle their financial affairs temporarily, such as during an extended absence. Specific duties include:
a. Temporary Financial Management: Managing the donor’s finances, similar to the duties under a Property and Financial Affairs LPA, but typically for a specified period or purpose.
b. Specific Transactions: Carrying out specific transactions or managing particular financial matters as outlined by the donor in the PoA document.
Section F: Changing or Revoking a Power of Attorney
Revoking or changing a Power of Attorney (PoA) is sometimes necessary to ensure that the arrangement continues to serve the best interests of the donor. Whether due to a change in circumstances or the donor’s preferences, it is important to understand the legal procedures involved.
1. How to Revoke an LPA
Revoking a Lasting Power of Attorney is a straightforward process, provided the donor still has mental capacity. The steps involved are as follows:
Step 1: Notify the Attorney(s): The donor should inform the attorney(s) in writing that the LPA is being revoked.
Step 2: Complete a Deed of Revocation: The donor must complete a formal document known as a Deed of Revocation. This document must clearly state the donor’s intention to revoke the LPA and include the donor’s full name and address, the date the original LPA was made, a statement revoking the LPA and the donor’s signature, witnessed by an independent adult.
Step 3: Inform the Office of the Public Guardian (OPG): The donor must send a copy of the Deed of Revocation to the OPG along with the original LPA (if available) and a cover letter explaining the revocation.
Step 4: Confirmation: Once the OPG has processed the revocation, they will confirm in writing that the LPA has been revoked.
2. Making Changes to an Existing LPA
If the donor wishes to make changes to an existing LPA, they cannot simply amend the original document. Instead, they must revoke the existing LPA and create a new one. The steps include:
Step 1: Revoke the Existing LPA: Follow the steps outlined above to revoke the current LPA.
Step 2: Create a New LPA: Complete a new LPA form with the desired changes. This involves the same process as creating an original LPA: fill out the appropriate LPA form (Health and Welfare or Property and Financial Affairs), have the new LPA certified by a certificate provider and register the new LPA with the OPG.
Step 3: Notify Relevant Parties: Inform any relevant parties, such as financial institutions or healthcare providers, about the new LPA.
3. What Happens if the Donor Loses Mental Capacity
If the donor loses mental capacity, they can no longer make or amend an LPA. However, there are several important considerations:
a. Existing LPA
If the donor has an existing LPA that was properly registered before they lost mental capacity, the attorney(s) can continue to act on their behalf according to the terms of the LPA.
The attorney(s) can make decisions about the donor’s healthcare and personal welfare if authorised by the LPA, and they can manage the donor’s financial affairs and property.
b. Revoking an LPA
Once the donor loses mental capacity, they can no longer revoke the LPA themselves. However, if there is concern about the attorney(s) acting improperly or not in the donor’s best interests, interested parties (such as family members or social services) can apply to the Court of Protection to have the LPA revoked.
c. Deputyship
If the donor did not create an LPA before losing mental capacity, a deputy may be appointed by the Court of Protection. A deputy is similar to an attorney but is appointed by the court to make decisions on behalf of someone who lacks mental capacity. The process involves applying to the Court of Protection, which reviews the application for deputyship and, if deemed suitable, is granted authority to manage the donor’s affairs as specified by the court.
Section G: Examples of Power of Attorney in Use
Power of Attorney can be applied in many different situations. The following examples illustrate how PoA can be used in real-life scenarios.
Scenario 1: Managing Financial Affairs During Extended Travel
Sarah, a 45-year-old university professor, decided to take a year-long sabbatical to conduct research abroad. Before leaving, she set up an Ordinary Power of Attorney, appointing her brother, Mark, as her attorney to manage her financial affairs.
Mark managed Sarah’s bank accounts, paid her bills, and handled her mortgage payments. He also dealt with any tax-related matters and ensured her investments were monitored and adjusted as necessary.
Sarah’s financial affairs were managed smoothly during her absence, allowing her to focus on her research without worrying about her finances back home.
Scenario 2: Health and Welfare Decisions for an Elderly Parent
John’s mother, Margaret, was diagnosed with dementia. Recognising the need for future planning, Margaret created a Lasting Power of Attorney for Health and Welfare, appointing John as her attorney.
When Margaret’s condition progressed, John made decisions about her medical treatments and care plans. He decided on her living arrangements, moving her to a specialised care home when home care was no longer sufficient. John ensured Margaret’s daily care needs were met, including her dietary preferences and personal care.
Margaret’s quality of life was maintained as her health declined, with decisions being made in her best interest by someone who knew her well and understood her wishes.
Scenario 3: Handling Property and Financial Affairs for an Incapacitated Individual
Emily’s father, David, suffered a severe stroke that left him unable to manage his financial affairs. Fortunately, David had previously set up a Lasting Power of Attorney for Property and Financial Affairs, naming Emily as his attorney.
Emily took control of her father’s finances, ensuring all bills and debts were paid on time. She managed his bank accounts, investments, and pension income.
Emily also arranged the sale of an unoccupied property to fund her father’s ongoing medical and care expenses.
David’s financial affairs were managed effectively, providing the necessary funds for his care and ensuring no financial obligations were neglected.
Scenario 4: Temporary Delegation of Authority During Medical Treatment
Robert, a 60-year-old business owner, required a major surgery that would leave him incapacitated for several months. He set up an Ordinary Power of Attorney, appointing his business partner, Lisa, to handle his business and personal financial matters during his recovery.
Lisa managed the business operations, including payroll, supplier payments, and client contracts. She also handled Robert’s personal financial matters, such as mortgage payments and insurance claims related to his medical treatment.
Robert’s business continued to operate smoothly, and his personal finances were well-managed, allowing him to focus on his recovery without additional stress.
Scenario 5: Emergency Activation of PoA Due to Sudden Illness
Tom, a 55-year-old lawyer, suffered a sudden stroke that left him unable to communicate or make decisions. Fortunately, he had set up both Health and Welfare and Property and Financial Affairs LPAs, appointing his wife, Jane, as his attorney.
Jane made urgent medical decisions, consenting to life-saving treatments on Tom’s behalf. She managed their household finances, ensuring bills were paid, and their financial obligations were met.
Jane also communicated with Tom’s employer and arranged for his disability benefits.
Tom received timely medical care, and the couple’s finances were maintained, ensuring that their standard of living was not significantly impacted by Tom’s sudden illness.
Section H: Summary
With a valid Power of Attorney in place, you can plan for the future, mitigate the impact of unforeseen circumstances, and ensure your personal, financial, and health-related decisions are made by people you trust.
Given the complexities of the legal framework and the importance of a PoA should it need to be relied on, taking professional advice can help ensure your wishes are respected and your affairs are managed properly.
For expertise and support throughout the process, from providing initial advice and drafting documents to managing registration and resolving disputes, take advice from a specialist Power of Attorney solicitor.
Section I: FAQs on Power of Attorney in the UK
What is a Power of Attorney?
A Power of Attorney (PoA) is a legal document that allows an individual (the donor) to appoint one or more people (attorneys) to make decisions on their behalf if they become unable to do so themselves.
What are the different types of Power of Attorney in the UK?
There are three main types: Lasting Power of Attorney (LPA), Ordinary Power of Attorney and Enduring Power of Attorney (EPA).
Who can be an attorney?
An attorney must be at least 18 years old, mentally capable, and should not be bankrupt if managing property and financial affairs. It is advisable to choose someone trustworthy and competent.
How do I create a Lasting Power of Attorney (LPA)?
To create an LPA, you must complete the relevant LPA form, have it certified by a certificate provider and register it with the Office of the Public Guardian (OPG).
How do I revoke an LPA?
To revoke an LPA, you need to inform your attorney(s) in writing, complete a Deed of Revocation and notify the OPG with the Deed of Revocation and the original LPA.
Can I change my LPA?
You cannot amend an existing LPA. To make changes, you must revoke the current LPA and create a new one.
What happens if I lose mental capacity and do not have an LPA?
If you lose mental capacity without an LPA, a family member or friend can apply to the Court of Protection to be appointed as a deputy to manage your affairs.
What decisions can an attorney make under a Health and Welfare LPA?
An attorney can make decisions about your healthcare, medical treatment, living arrangements, and daily care, but only if you lack the mental capacity to make these decisions yourself.
What decisions can an attorney make under a Property and Financial Affairs LPA?
An attorney can manage your finances, including handling bank accounts, paying bills, collecting benefits, managing investments, and buying or selling property. This LPA can be used as soon as it is registered, with your permission.
Do I need a solicitor to create a Power of Attorney?
While it is not mandatory to use a solicitor, seeking legal advice can ensure that the document is correctly completed and meets all legal requirements.
How long does it take to register an LPA with the OPG?
The registration process typically takes around 8 to 10 weeks, assuming there are no errors or objections.
Is there a fee to register an LPA?
Yes, there is a registration fee per LPA. As of 2024, the fee is £87, but exemptions or reductions may apply based on income.
Can I appoint more than one attorney?
Yes, you can appoint multiple attorneys and specify whether they must act jointly (together) or jointly and severally (independently).
What happens if my attorney can no longer act on my behalf?
If an attorney can no longer act, you should have named a replacement attorney in the LPA document. If not, you may need to create a new LPA or apply to the Court of Protection for a deputy to be appointed.
How can I ensure my attorney acts in my best interests?
Attorneys are legally required to follow the principles of the Mental Capacity Act 2005, act in your best interests, and make decisions that are the least restrictive of your rights and freedoms. The OPG can investigate if you believe your attorney is not acting in your best interests.
Section J: Glossary of Power of Attorney Terms
Attorney: A person appointed to act on behalf of the donor under a Power of Attorney. They make decisions about the donor’s affairs as specified in the PoA document.
Certificate Provider: An independent person who confirms that the donor understands the LPA, is not under undue pressure to create it, and that no fraud is involved.
Court of Protection: A specialist court that makes decisions about the property, financial affairs, and personal welfare of people who lack mental capacity.
Deed of Revocation: A formal document used to cancel an existing Power of Attorney.
Donor: The person who creates a Power of Attorney, giving someone else the legal authority to act on their behalf.
Enduring Power of Attorney (EPA): A type of PoA used before October 2007, allowing the attorney to manage the donor’s financial affairs. EPAs can still be used if created before this date.
Jointly: When more than one attorney is appointed, and all must all agree on every decision.
Jointly and Severally: When more than one attorney is appointed, and they can either make decisions together or independently.
Lasting Power of Attorney (LPA): A legal document that allows a person to appoint one or more people to make decisions on their behalf. There are two types: Health and Welfare LPA and Property and Financial Affairs LPA.
Mental Capacity: The ability to make decisions for oneself. To have mental capacity, a person must understand the decision, why they need to make it, and the likely outcomes.
Mental Capacity Act 2005: The law in the UK that sets out how to make decisions on behalf of individuals who lack the capacity to make decisions themselves.
Office of the Public Guardian (OPG): A government body responsible for registering LPAs and EPAs, and supervising deputies.
Ordinary Power of Attorney: A legal document that gives someone authority to act on behalf of the donor for a temporary period or specific task. It is only valid while the donor has mental capacity.
Property and Financial Affairs LPA: A type of LPA that gives the attorney the authority to make decisions about the donor’s money, property, and financial affairs.
Registering: The process of submitting an LPA or EPA to the Office of the Public Guardian to make it legally effective.
Replacement Attorney: A person named in the PoA to take over if the original attorney can no longer act.
Revocation: The act of cancelling or withdrawing the authority given in a Power of Attorney.
Statutory Principles: The five key principles set out in the Mental Capacity Act 2005 that guide decision-making for individuals who lack mental capacity.
Supervision: The monitoring of attorneys and deputies by the Office of the Public Guardian to ensure they act in the best interests of the donor.
Section K: Additional Resources
GOV.UK – Power of Attorney Overview
https://www.gov.uk/power-of-attorney
Comprehensive guide on setting up and managing PoA, including forms and detailed instructions.
Office of the Public Guardian (OPG)
https://www.gov.uk/government/organisations/office-of-the-public-guardian
Official site for registering LPAs, guidance on using PoA, and resources for both donors and attorneys.
Citizens Advice Bureau
Offers free, confidential advice on PoA and other legal matters, including step-by-step guides and support.
Age UK
https://www.ageuk.org.uk/information-advice/money-legal/legal-issues/power-of-attorney/
Provides information specifically for older people on creating and managing PoA, with practical advice and resources.
Solicitors for the Elderly (SFE)
A national organisation of lawyers who specialise in legal services for older people, offering expert advice on PoA.
The Law Society
https://solicitors.lawsociety.org.uk/
Offers a searchable database of solicitors for legal advice on PoA and other related matters.
Alzheimer’s Society
https://www.alzheimers.org.uk/get-support/legal-financial/lasting-power-attorney
Provides information on PoA for individuals with dementia, including how to create and register an LPA.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
