What is Power of Attorney?
Power of Attorney (PoA) allows you to choose someone else to deal with third parties, such as banks or the local council, on your behalf, should you be unable to do so in the future.
In England and Wales, there are three types of Power of Attorney in operation:
- Lasting Power of Attorney
- Ordinary Power of Attorney
- (historically) an Enduring Power of Attorney.
You can put a Power of Attorney in place at any time, as long as you are capable of making your own decisions (have mental capacity) at the time the document is signed.
You can give ‘power’ to one or more people and you are known as the ‘donor’. It’s important that you choose people you can trust to act in your best interests.
If you’re appointing more than one person, you must decide if they will make decisions:
- separately or together: sometimes called ‘jointly and severally’, which means attorneys can make decisions on their own or with other attorneys
- together: sometimes called ‘jointly’, which means all the attorneys have to agree on the decision.
You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.
Power of Attorney in Scotland and Northern Ireland
The importance of organising a Power of Attorney
If a Power of Attorney isn’t agreed in advance of when it’s needed, it can lead to complications should you find you can no longer look after your own finances or you have greater care needs. For this reason it’s best to think about organising a PoA while you’re able to do so – it will give peace of mind to both yourself and your family members.
- Find out how Which? can help you to set up a Power of Attorney.
If you have any concern that the person you’re caring for might lose their mental capacity (for example, if they are in the early stages of dementia), talk to them about organising a PoA as soon as possible. The result of not doing this can be a time-consuming and drawn-out process, which requires you to go through the Court of Protection – read more about ‘If your loved one lacks mental capacity’ below.
Lasting Power of Attorney (LPA)
This is the most common kind of Power of Attorney. There are two types of LPA; you may want either one or both types in place.
- Property and Financial Affairs LPA: this covers things such as managing day-to-day finances, debts, benefits – such as the Attendance Allowance and Personal Independent Payments (PIP) – and buying or selling property. It can be used both before and after the donor has lost capacity.
- Health and Welfare LPA: this covers issues such as NHS treatment, care and housing. It can only be used after the donor has lost mental capacity.
Setting up an LPA is straightforward and we give you advice in a separate article.
Ordinary Power of Attorney (OPA)
If you want someone to look after your financial affairs for a certain period of time, you can give them Ordinary Power of Attorney. An Ordinary Power of Attorney might be required if you:
- have a physical illness
- have had an accident that lead to physical injury
- are abroad for a long period of time.
However, Ordinary Power of Attorney should not be used if you:
- have been diagnosed with a health problem that can lead to mental incapacity,
- are worried that you may develop such a health problem in due course; or
- want to put in place arrangements to ensure your affairs are attended to by someone else of your choosing in the event you lose mental capacity in the future.
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’s more appropriate to use a Lasting Power of Attorney (LPA).
Enduring Power of Attorney (EPA)
This type of Power of Attorney existed in England and Wales until 2007. It’s no longer possible to get a new one, but if there is an old one in place it will still be valid should you need to register it in future.
An Enduring Power of Attorney is only applicable to financial affairs, whereas a Lasting Power of Attorney can relate to either financial affairs or health and welfare, so if you (or the person you are caring for) have an EPA in place, you might want to consider replacing it with a Lasting Power of Attorney.
Using a Lasting Power of Attorney
As soon as a Lasting Power of Attorney has been registered and the documentation received, it can be used at any time that you see fit – you and the people you have appointed as your attorneys don’t have to wait for you to lose capacity.
If you are caring for someone, it might be that you need to use it straightaway, if the person you care for is very ill. Or you might need to use it every now and then for short periods, for example while they are in hospital. On the other hand, the document might sit in a drawer for years before it’s needed, but it can be reassuring to know that the legal paperwork is in place should it ever be needed.
To use the Lasting Power of Attorney, you must show a certified copy of it (not just a photocopy) to any organisation that you want to deal with on your loved one’s behalf, including their bank.
If you need additional certified copies at a later date, any solicitor should be able to do this for a small fee (around £5 per copy).
When to consider a ‘living will’
If there are specific medical treatments that you don't want to receive in the future, you should also consider recording these in an advance decision to refuse treatment. Also known as a ‘living will’, this gives those acting on your behalf the authority to refuse the treatments you’ve specified, including life-sustaining treatments such as being put on a life support machine or being resuscitated if your heart stops.
Power of Attorney fee refund scheme
If you applied to register a Lasting or Enduring Power of Attorney between 1 April 2013 and 31 March 2017, you may be entitled to a partial refund of the fee you paid as the Ministry of Justice has reviewed the scale of fees paid during that period. You must claim your refund by 31 January 2021. See the gov.uk website for more details.
If your loved one lacks mental capacity
If the person you care for is no longer able to make their own decisions and doesn't have a PoA in place, it’s too late to apply for one. In this situation, you’ll have to make an application to the Court of Protection.
The Court of Protection was set up by the Mental Capacity Act to represent the best interests of people who can’t make decisions for themselves. The Court can:
decide whether someone is mentally capable of making decisions or not make decisions about the affairs of someone lacking mental capacity.
In the absence of a Lasting Power of Attorney, the Court can appoint a ‘deputy’ to manage your loved one’s affairs. This is most likely to be a close relative, but the court can appoint a professional if there is no one else suitable to do it.
Read more about appointing a deputy in our article about the Mental Capacity Act.
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Your loved one might need help with their financial affairs if they have a disability or an illness such as dementia.
Here we look at the different types of Power of Attorney for Scotland and explain how to set them up and how they work.