What is power of attorney?

What is power of attorney?

Power of attorney is a legal document which allows one person (the donor) to give at least one other person (the attorney) the right to make decisions on their behalf, regarding their health and/or finances.

Having a power of attorney in place is useful if you become unable to make decisions yourself – for example, due to illness.

You can only set up power of attorney while you still have the ability to weigh up information and make decisions for yourself - known as 'mental capacity' - so it's worth putting one in place early on.

If you don’t have power of attorney set up, a friend or relative may have to apply to the courts for the right to make decisions on your behalf.

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Types of power of attorney 

There are different types of power of attorney, depending on the type of decisions you would like your attorney to make on your behalf.

There are also different legal frameworks in England and Wales, Scotland and Northern Ireland. Here, we explain the types of power of attorney in each nation.

England and Wales

Lasting power of attorney (LPA) is the most common form of power of attorney in England and Wales. 

An LPA allows another person to make decisions on your behalf indefinitely - it remains in place until you pass away or revoke authority.

In England and Wales there are two types of LPA and we recommend that you set up both at the same time:

A property and financial affairs LPA gives your attorney the power to make decisions about your money and property. This includes:

• managing bank or building society accounts
• paying bills
• collecting a pension or benefits
• if necessary, selling your home.

A health and welfare LPA can only be used when you lose mental capacity. It gives your attorney the power to make decisions about:

• your daily routine (washing, dressing and eating)
• medical care
• moving into a care home
• life-sustaining medical treatment.

Scotland 

In Scotland there are three types of power of attorney:

• Continuing power of attorney allows the attorney to make decisions about your property and financial affairs. 
• Welfare power of attorney allows someone to make decisions about your personal care and medical treatment.
• Combined power of attorney allows your attorney to make decisions about both your financial affairs and personal care.

Northern Ireland

Enduring power of attorney is used in Northern Ireland. This gives the attorney the authority to make decisions about your property and financial affairs.

You can choose whether an enduring power of attorney comes into effect immediately or at some future time - such as when you lose capacity or it is registered by the court.

How much does power of attorney cost?

This table shows how much it costs to register power of attorney in England and Wales, Scotland and Northern Ireland:

How to choose an attorney

Your attorney will have the right to make important decisions on your behalf, so it’s vital to choose someone you trust to act in your best interests.

You can appoint more than one attorney, which can be helpful if one is unable to act in the future.

If you choose multiple attorneys, you'll need to decide whether they must act jointly (making decisions together) or jointly and severally (able to act independently). 

Bear in mind that appointing attorneys jointly can limit access to services such as online or mobile banking and debit cards.

Take care if you only appoint one attorney and they own property with you. If you lost mental capacity, your attorney would have to choose another person to act as a 'trustee' before the property could be sold. 

Should you set up power of attorney yourself?

When setting up power of attorney, you can choose to do it yourself, use a solicitor or use a service.

The DIY route is the cheapest and the process is easier than it used to be. However, it’s important you follow the guidance carefully as your application could be rejected if there are mistakes.

You can choose to use a solicitor to complete the application for you, which typically costs between £500 and £800. If you use a solicitor, they’ll usually store the document for you, until your attorney asks for it.

Alternatively, you can use a power of attorney service, like the one offered by Which?. You’ll receive templates and guidance, and your application will be reviewed for errors by our specialists before you submit it for registration.

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How to set up power of attorney in England and Wales

1. Complete the forms to appoint your attorney

To register a lasting power of attorney, you'll need to submit the following forms to the Office of the Public Guardian:

• LP1F - to register a LPA for financial decisions
• LP1H - to register a LPA for health and care decisions.

You can either complete the forms online and then print them or download paper forms and fill them in by hand.

Once you’ve completed the forms you, your witnesses, your attorneys and a ‘certificate provider’ will need to sign the forms before they're submitted. This must be done in a strict order or the document will be void - you can find more guidance on gov.uk.

A 'certificate provider' is someone who can attest to your understanding (capacity). This should be someone who has known you well for at least two years, or a professional such as a GP, solicitor or social worker. Your certificate provider can also witness you and your attorney’s signatures.

• Find out more: common mistakes to avoid when completing your LPA

2. Register your LPA with the Office of the Public Guardian

Once you’ve made your power of attorney, you need to register it with the Office of the Public Guardian (OPG) and pay the application fee. It normally takes around 8-10 weeks to register an LPA, as long as there aren’t any errors with your application.

To register your LPA, send your completed forms to the OPG at:

Office of the Public Guardian, PO Box 16185, Birmingham, B2 2WH.

If you completed your forms online, you can pay the application fee online when using the service. If you used the paper forms, you can pay by cheque or card.

Once your LPA is registered, the OPG will send you a stamped copy, showing that it has been accepted and registered. You either store it yourself, or pass it on to your attorney.

How to set up power of attorney in Scotland

1. Draft your PoA

In Scotland, the OPG does not provide template documents so you will need to arrange for your own power of attorney to be drafted. 

If you use a solicitor, they will do this for you. Alternatively you can buy templates from stationary shops or use a service like Which?.

2. Get a certificate of capacity

Before you sign and date the power of attorney, you must get a certificate of capacity confirming that you understand the contents of the document.

In Scotland, only a prescribed person can confirm that you are capable and able to grant the power of attorney. As part of the process, a solicitor registered to practise law in Scotland or a registered UK medical doctor must carry out an interview with you and confirm that you understand the nature and impact of making a power of attorney.

Which? has had feedback that some solicitors and doctors are reluctant to provide this service. It’s recommended that you approach a doctor or solicitor before you begin the process to make sure they're willing to provide the service and confirm their fees for doing so.

3. Register your PoA with the Office of the Public Guardian

Once you’ve completed your PoA you need to register it with the Office of the Public Guardian. You can register your PoA and pay the fee online using the EPOAR portal.

Alternatively, you can submit your PoA documents, along with a registration form and fee via post to:

The Office of the Public Guardian, Hadrian House, Callendar Business Park, Callendar Road, Falkirk, FK1 1XR

How to set up power of attorney in Northern Ireland

1. Complete and sign the EPA forms

You can find the EPA forms on the NI Justice Department’s website. Once you’ve completed the forms, they must be signed by you, your attorneys and a witness.

There is guidance available online, but while you can complete these forms yourself, the Department of Justice strongly recommend that you seek legal advice, especially if the you have a large or complex estate. 

2. Register your EPA once you become incapacitated

In Northern Ireland, the EPA comes into effect as soon as it is signed, unless you have included any restrictions or conditions.

However, your EPA must be registered with the Office of Court and Protection once you lose capacity. 

Your attorney can register your EPA by completing form EP2 and submitting it to the Office of Court and Protection.

How to revoke power of attorney

As long as you still have mental capacity, you can revoke the appointment of one or more attorneys. 

In England and Wales, you'll need to send the OPG the original power of attorney, as well as a written statement called a 'partial deed of revocation'. You can find the wording for this deed at the government's power of attorney guide.

In Scotland, you can revoke the power of attorney after the document has been registered, by giving notice in writing to the Scottish OPG. 

In Northern Ireland, you can revoke an EPA while you have mental capacity and your EPA has not been used. You should give notice of revocation to your attorney. Once an EPA has been registered, it can only be revoked by the High Court.