Power of Attorney
Using a Power of Attorney
By Ian Robinson
Using a Power of Attorney
Find out how to use Power of Attorney, whether you're acting alone or jointly and severally, and learn about registering Power of Attorney with a bank.
Power of Attorney allows one person (the donor) to give others (their attorneys) the right to act on their behalf. There are two main types, Enduring Power of Attorney (EPA) and Lasting Power of Attorney (LPA).
No new EPAs have been created since October 2007, but those set up before then can still be used to control the property and financial affairs of the donor.
Lasting Power of Attorney is the current form of Power of Attorney. There are two types:
- Property and financial affairs LPA: the attorney can make decisions about money and property, including managing bank or building society accounts, paying bills, collecting a pension or benefits and, if necessary, selling the donor's home. Once registered with the Office of the Public Guardian, it can be used immediately, or held in readiness until required.
- Health and welfare LPA: the attorney can make decisions about the donor's daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if the donor is unable to make their own decisions.
Once a Lasting Power of Attorney (LPA) has been registered, attorneys can use it as required, within the scope of the powers they have been granted. Property and financial affairs LPAs are often used with banks.
Acting as an attorney
To act as an attorney, you will need certified copies of the original Power of Attorney. These are accepted by banks and other institutions and prevent any risk of the original (stamped by the OPG) getting lost.
A normal photocopy is not sufficient, unless it has been countersigned by the donor while they still have capacity.
To be valid, such copies need to include the following declaration at the bottom of each page: ‘I certify this is a true and complete copy of the corresponding page of the original Lasting Power of Attorney.’
On the final page of the copy, the donor must write: ‘I certify this is a true and complete copy of the Lasting Power of Attorney.’ Every page must be signed and dated.
Most solicitors will provide certified copies of the OPG document for a very modest charge, even if they didn't provide the original Power of Attorney.
Acting jointly and severally
One of the most important things to consider is whether there are joint attorneys, who must always act together, or attorneys who are empowered to act ‘jointly and severally’.
Being able to act severally means each attorney can use the Power of Attorney independently. This is a great advantage when attorneys live some distance apart.
Banks and building societies normally ask for one of the joint attorneys to be identified as the ‘lead’, but unless they can act severally, their scope for manoeuvre is severely limited.
Registering Power of Attorney with a bank
Most attorneys for property and financial affairs deal with the donor’s bank. Before you can do this, you have to go through another registration process. Each bank has to satisfy itself of the validity of the LPA - and that the attorney who proposes to use it is entitled to control the donor’s finances. To do this, they need to see:
- The original LPA document stamped by the OPG (or a certified copy, signed by a solicitor)
- Proof of each attorney’s identity (their passport, or a driving licence)
- Proof of each attorney’s address (a recent utility bill)
In branch, the bank takes photocopies of the Power of Attorney form and supporting documents. If there are joint attorneys, each one can normally have their documents copied separately at their local branch. If registration is done by post, everything needs to be sent - including supporting documentation.
Declaring the donor's capacity
An important part of the process is where attorneys indicate the basis on which they wish to operate. They have to say whether the donor still has capacity (continuing to sign cheques and receive statements and correspondence, for example) or whether they lack capacity, in which case the attorneys take over entirely. No medical evidence is required for this, although attorneys must report the donor’s condition accurately.
The distinction has important consequences in terms of what a bank will permit and the type of access it provides. If the donor lacks capacity, they will no longer be able to issue cheques or authorise withdrawals from their account, for example. If they have capacity, but require an attorney to act on their behalf for certain transactions due to physical incapacity, for example, they can continue to make withdrawals and issue cheques independently.
If you are dealing with the affairs of someone with accounts at more than one bank, you will have to go through the registration process several times.
Find out more: The Which? Elderly Care website gives free, independent and practical advice about caring for older people across the UK. Aimed at relatives, the site focuses on financing care, housing options and older people's needs, such as dealing with memory problems and accessing local authority and NHS care and support.
Using Power of Attorney with a bank
Most banks will give you telephone and online access to the donor’s account, in addition to being able to give instructions in branch and sign cheques. This is not always the case, however, especially where the donor still has capacity.
Other points of difference include the issuing of cheque books to attorneys and the automatic forwarding of duplicate statements. Some banks provide cheque books with the attorney’s name printed together with that of the donor, while others expect attorneys to sign cheques which bear the donor’s name. Statements are normally sent to attorneys where requested, but not all banks forward them automatically .
Applying for a new Isa in the name of a donor is allowed by most banks, as is opening new savings accounts- so having Power of Attorney on your account doesn’t mean you have to miss out on tax-free interest or the best rates.
Borrowing is normally discouraged. Very few banks permit a Power of Attorney credit card, and the use of an overdraft facility is similarly restricted.
The OPG has produced a guide for Attorneys in conjunction with the British Bankers Association (BBA) and the Building Societies Association (BSA).
Using a Health and Welfare Power of Attorney
A Health and Welfare LPA can only be used if the donor is no longer able to make independent decisions. Their attorney will use the power when arranging personal care, for example, or discussing medical care with a doctor, including life-sustaining treatment. It also allows the attorney to make decisions about care homes.
Attorney’s duty of care
Acting as an attorney obliges you to maintain a duty of care to the donor, not to benefit yourself. It’s important to avoid any potential conflicts of interest. Specifically, you must keep the donor’s money and property separate from your own and keep accurate accounts in all of your dealings as an attorney.
- Last updated: June 2016
- Updated by: Ian Robinson