What is Power of Attorney?
If you want someone to act on your behalf in financial or medical decisions, you'll need to give them Power of Attorney over your affairs.
Power of Attorney is a legal document where one person (the donor) gives others (their attorneys) the right to make decisions on their behalf.
You can only set up a 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 a plan in place early on.
Lasting Power of Attorney (LPA)
Lasting Power of Attorney is the most common form of Power of Attorney. It is an ongoing arrangement with no expiry date that will allow another person to make decisions on your behalf.
An LPA has to be registered with the government, through the 'Office of the Public Guardian.' You can find out more about this in our guide to setting up Power of Attorney.
There are two types of Lasting Power of Attorney:
Property and financial affairs LPA
This gives your attorney the power to make decisions about your money and property, including managing bank or building society accounts, paying bills, collecting a pension or benefits and, if necessary, selling your 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
This gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment. It can only be used if you are unable to make your own decisions.
We would recommend setting both up at the same time. Many people do this at the while reviewing or revising their will, and you may be able to use the same solicitor.
Lasting Power of Attorney replaced Enduring Power of Attorney in October 2007.
Find out more: Setting up a Power of Attorney
Enduring Power of Attorney (EPA)
No new Enduring Power of Attorneys have been set up since 2007.
EPAs set up before October 2007 can still be used to control the property and financial affairs of the donor.
If the donor still has mental capacity an existing EPA can be used without being registered with the Office of the Public Guardian.
If the donor lacks capacity, for example, as the result of dementia or a stroke, the EPA can no longer be used until it has been registered. Although no new EPAs can be created, those already completed remain valid and can still be registered.
Ordinary Power of Attorney - temporary power
An Ordinary Power of Attorney gives another person authority to act on your behalf for a temporary time period.
But as soon as you lose mental capacity, the Ordinary Power of Attorney will expire. This means it's not suitable if you need someone to manage your affairs after you've lost the ability to do it yourself.
This option is most useful if you temporarily want someone to make decisions for you - for example, while recovering from an injury or during an extended overseas trip.
If you choose, you can specify a time period for an Ordinary Power of Attorney, or restrict it to specific activities.
You don't need to register this document with the Office of the Public Guardian.
Do you need a LPA and an Ordinary Power of Attorney?
In the graphic below, we explain the difference between a Lasting Power of Attorney and an Ordinary Power of Attorney, and help you decide which one you need.
In Scotland, Ordinary Powers of Attorney are known as General Powers of Attorney (GPA) and do not need to be registered before use.
Where the granter lacks capacity, a Continuing Power of Attorney (CPA) is required to control their financial affairs. This must be registered with the Scottish OPG.
For decisions about a granter’s health and welfare, a Welfare Power of Attorney (WPA) is required. This also needs to be registered and can only be used if the donor lacks capacity.
In Northern Ireland, EPAs are still used. They can be ordinary Power of Attorneys if the donor retains capacity.
If the donor lacks capacity, only an Enduring Power of Attorney that has been registered with the Office of Care and Protection may be used.
What is your duty of care as an attorney?
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.
When do you need Lasting Power of Attorney?
Putting in place a Lasting Power of Attorney can give you peace of mind that someone you trust is in charge of your affairs.
If you're facing an illness, or believe your mental capacity might deteriorate, it's worth thinking about who you would like to handle your affairs.
You can find out more about when to put in place a Power of Attorney on our Elderly Care guide.