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What is a Power of Attorney?
A Power of Attorney is a legal document made by one person (Principal) that appoints another person to do things on their behalf. This may include signing a specific document, or managing the principal’s money, bank accounts, shares, real estate and other assets, or even making decisions about someone’s care. The person who makes decisions and carries out actions for the Principal is called the ‘Attorney’. |
This article includes information on both a Property and Financial Affairs Lasting Power of Attorney and a Health and Welfare Lasting Power of Attorney.
Appointing an attorney gives your attorney the legal authority to look after your affairs on your behalf whilst you are still alive.
You can appoint an attorney to act for you in a variety of circumstances such as when you are abroad, or using special forms and following a set process, for a time when you are no longer able to manage your affairs.
A Power of Attorney can help if you cannot look after your finances or make decisions for yourself. For example, if you become ill, are confined to hospital or become unable to go to banks, government offices or estate agencies, then you may need someone else to do these things for you. If you want someone to be able to buy, sell or deal with property on your behalf, then a Power of Attorney is essential.
If we had a choice, we would all prefer to make our own decisions about our lifestyle such as where we live and what medical treatment and services we have right up to the end of our life.
Unfortunately, this is not always possible as people may lose the capacity to make these decisions through accidents, illness or degenerative conditions. There is a form of Power of Attorney that can help with our planning for the possibility that we may at some stage not be able to make decisions for ourselves.
Note: The word ‘attorney’, when used in the expression ‘power of attorney’, does not mean that the person appointed has to be a solicitor or lawyer, it just means someone who does things on your behalf.
There are two main types of Powers of Attorney:
You should obtain advice from a solicitor or from your nearest Citizen’s Advice office if you wish to make an Ordinary Power of Attorney.
An Ordinary General Power of Attorney may start as soon as it is signed by you and given to your attorney. If you do not want your attorney to start using the Power of Attorney straight away, you can state on the Power of Attorney form when you want it to start.
An Ordinary Power of Attorney automatically terminates if you lose mental (meaning decision-making) capacity after its execution, therefore if you wish the Power of Attorney to continue if you lose mental capacity, you should opt for a Lasting Power of Attorney.
If you lose mental capacity, the attorney appointed by an Ordinary Power of Attorney must immediately cease to act as your attorney. If you have an Ordinary Power of Attorney and subsequently lose capacity, you cannot make another Power of Attorney because you lack the mental capacity required to do so.
In this scenario, the only way for someone to be able to make decisions on your behalf is for them to approach the Court of Protection to seek to be appointed as your ‘deputy’. For this reason, it is suggested that elderly people consider using the Lasting Power of Attorney forms.
2. Lasting Powers of Attorney
In the UK, there are two types of Lasting Powers of Attorney, and it is common for people to choose both:
2.1 Property and Finance Lasting Power of Attorney
This enables you to appoint someone to make decisions about money and property for you.
2.2 Health and Welfare Lasting Power of Attorney.
This enables you to appoint someone to make decisions about how you live, the care that you receive, and your medical treatment.
Appointing an attorney gives your attorney the legal authority to look after your affairs on your behalf whilst you are still alive.
You can appoint an attorney to act for you in a variety of circumstances such as when you are abroad, or using special forms and following a set process, for a time when you are no longer able to manage your affairs.
A Power of Attorney can help if you cannot look after your finances or make decisions for yourself. For example, if you become ill, are confined to hospital or become unable to go to banks, government offices or estate agencies, then you may need someone else to do these things for you. If you want someone to be able to buy, sell or deal with property on your behalf, then a Power of Attorney is essential.
If we had a choice, we would all prefer to make our own decisions about our lifestyle such as where we live and what medical treatment and services we have right up to the end of our life.
Unfortunately, this is not always possible as people may lose the capacity to make these decisions through accidents, illness or degenerative conditions. There is a form of Power of Attorney that can help with our planning for the possibility that we may at some stage not be able to make decisions for ourselves.
Note: The word ‘attorney’, when used in the expression ‘power of attorney’, does not mean that the person appointed has to be a solicitor or lawyer, it just means someone who does things on your behalf.
There are two main types of Powers of Attorney:
- Ordinary Power of Attorney, and
- Lasting Power of Attorney.
- can be general or for a one transaction only
- can be short or longer term
- terminates if you lose mental capacity.
An Ordinary Power of Attorney can be useful for a short-term appointment, for example if you are going abroad for a month or two and wish to appoint an attorney to look after your legal and financial affairs while you are away.
It is also useful if you want the attorney to act only in relation to certain one-off transactions, for example to buy or sell property, shares or other financial assets on your behalf. An Ordinary Power of Attorney can be easily tailored to meet your requirements.
You should obtain advice from a solicitor or from your nearest Citizen’s Advice office if you wish to make an Ordinary Power of Attorney.
An Ordinary General Power of Attorney may start as soon as it is signed by you and given to your attorney. If you do not want your attorney to start using the Power of Attorney straight away, you can state on the Power of Attorney form when you want it to start.
An Ordinary Power of Attorney automatically terminates if you lose mental (meaning decision-making) capacity after its execution, therefore if you wish the Power of Attorney to continue if you lose mental capacity, you should opt for a Lasting Power of Attorney.
If you lose mental capacity, the attorney appointed by an Ordinary Power of Attorney must immediately cease to act as your attorney. If you have an Ordinary Power of Attorney and subsequently lose capacity, you cannot make another Power of Attorney because you lack the mental capacity required to do so.
In this scenario, the only way for someone to be able to make decisions on your behalf is for them to approach the Court of Protection to seek to be appointed as your ‘deputy’. For this reason, it is suggested that elderly people consider using the Lasting Power of Attorney forms.
2. Lasting Powers of Attorney
In the UK, there are two types of Lasting Powers of Attorney, and it is common for people to choose both:
2.1 Property and Finance Lasting Power of Attorney
This enables you to appoint someone to make decisions about money and property for you.
2.2 Health and Welfare Lasting Power of Attorney.
This enables you to appoint someone to make decisions about how you live, the care that you receive, and your medical treatment.
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Examples of the types of decisions that can be covered by this type of Power of Attorney are:
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Both Lasting Powers of Attorney continue to operate after the person who makes them is no longer able to make decisions for themselves.
A Health and Welfare Lasting Power of Attorney is only effective:
- if and when the principal is unable to make decisions for themselves.
Property and Financial Affairs Lasting Power of Attorney starts:
- immediately or only when you are unable to make decisions for yourself.
By making Lasting Powers of Attorney, there will be someone who can legally look after your legal and financial affairs and make decisions about your care if you become unable to do so. Your attorney will be legally obliged to make these decisions in your best interests. This means that they should take into account your expressed views and wishes.
It is important to make your Lasting Powers of Attorney while you still have mental capacity. It is a straightforward and practical step to prepare for what may happen in the future.
Once you have lost the mental capacity to understand what you are doing, you cannot make a Power of Attorney.
A Lasting Power of Attorney cannot be revoked if you lose mental capacity so if you want the Power of Attorney to cease if you lose mental capacity, you should appoint someone using an Ordinary Power of Attorney.
Who should I appoint?
The person appointed as your attorney can be any person over the age of 18 years who is able to assist you with the management of money or property, or who can make decisions on your behalf about how and where you live, and about your medical care – a relative, friend or professional adviser.
You may choose more than one attorney and specify if they are to act jointly, i.e. both must agree, or severally i.e. either attorney may make a decision without consulting the other attorney, or you can specify decisions for which they must act jointly and others where they may act individually. For a Property and Finance Lasting Power of Attorney your attorney cannot be bankrupt or subject to a Debt Relief Order.
When does my attorney act?
A properly prepared Lasting Power of Attorney is valid once it has been signed by all the people who need to sign it, which includes your attorneys and someone who acts as ‘Certificate Provider’. A Certificate Provider is an impartial person who confirms that you understand what you are doing in making your Lasting Power of Attorney, and that no one is forcing you to make it. Their role is a safeguard that is built into the process.
There are formalities associated with signing a Lasting Power of Attorney, and these must be carefully followed if the Lasting Power of Attorney is to be valid. There are links below to helpful information and for contact details of the Government agency that can help you.
Although your Lasting Power of Attorney is valid once is has been properly signed, it cannot be used until it has been registered with the Office of the Public Guardian. There is however no requirement to register your Lasting Power of Attorney immediately. A Lasting Power of Attorney can be registered even after you have lost capacity. When and if you choose to register is a personal decision, but the Power of Attorney cannot be used until registration is complete. There is a cost for registration.
What Protections are in Place?
An attorney must always act in your best interests. The Mental Capacity Act Code of Practice
provides more details on this. It also sets out five basic principles which your attorney must follow when working out whether and how to act in your best interests.
You can include binding instructions for your attorney in your Lasting Power of Attorney. Your attorney must follow these instructions. You can also set out your preferences, which your attorney must bear in mind, but is not bound to follow. Setting out your preferences can be very helpful for your attorney when they have to make decisions in your best interests. It can also be very helpful to have on-going discussions with your attorney about your preferences for your care. It is a way that you can take responsibility for yourself, even though ultimately someone may have to step in and make decisions for you.
When you make a Lasting Power of Attorney, you will need to have a Certificate Provider confirm that you understand what you are doing, and that no one is forcing you to make a Lasting Power of Attorney. Your Certificate Provider must be someone who is over 18, and who has known you well for at least two years. They could be a friend or neighbour, or a professional person such as your doctor. There are quite a lot of people who cannot be your certificate provider, such as your attorneys or members of your family.
As well as your Certificate Provider, you can also nominate up to five people who will be formally notified if your Lasting Power of Attorney is about to be registered. There is a process for them to raise concerns if they think that you were under pressure to make your Lasting Power of Attorney, or if they are concerned about fraud. You cannot nominate your attorney. People often choose close friends or family members as people to be notified, but you do not need to nominate anyone.
Life Sustaining Treatment
As part of a Health and Welfare Lasting Power of Attorney you must decide whether or not you wish your attorney to be able to give or refuse consent to life sustaining treatment. If you choose to give your attorney this authority, and need life sustaining treatment, but can’t make decisions, your attorney will be able to speak to doctors and give instructions as if they were you.
Life sustaining treatment means care, surgery, medicine or other help from medical professionals that is needed to keep someone alive.
Further Information
A lot of information about Lasting Powers of Attorney is available on the UK Government site (links below). You can prepare the necessary documentation to make a Power of Attorney on the site, or alternatively you can download the forms to enable you to prepare a Power of Attorney in paper form.
If you download the forms, you will also receive a very straightforward guidance booklet, which may well also assist those who choose to complete their forms online. You can also contact the Office of the Public Guardian if you do not have access to the internet, or need assistance to fill out your forms.
https://www.gov.uk/power-of-attorney/overview
The link below is to the page where you can download a complete pack of forms to make a Lasting Power of Attorney including the helpful guidance booklet:
https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney.'
Below is a link to the page, which explains who to contact if you are concerned about an attorney or how a Power of Attorney is being used.
https://www.gov.uk/report-concern-about-attorney-deputy
You can also contact the Office of the Public Guardian if you need help, for example in deciding if to make a Lasting Power of Attorney. They can be contacted at:
customerservices@publicguardian.gsi.gov.uk
You can find the Mental Capacity Act Code of Practice online at
www.gov.uk/opg/mca-code
Catherine J., UK and Anne McR., Australia
NOTE: Unless otherwise stated, the information in this document is based on the laws of England. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute, and is in no way an alternative to obtaining legal advice.
A Health and Welfare Lasting Power of Attorney is only effective:
- if and when the principal is unable to make decisions for themselves.
Property and Financial Affairs Lasting Power of Attorney starts:
- immediately or only when you are unable to make decisions for yourself.
By making Lasting Powers of Attorney, there will be someone who can legally look after your legal and financial affairs and make decisions about your care if you become unable to do so. Your attorney will be legally obliged to make these decisions in your best interests. This means that they should take into account your expressed views and wishes.
It is important to make your Lasting Powers of Attorney while you still have mental capacity. It is a straightforward and practical step to prepare for what may happen in the future.
Once you have lost the mental capacity to understand what you are doing, you cannot make a Power of Attorney.
A Lasting Power of Attorney cannot be revoked if you lose mental capacity so if you want the Power of Attorney to cease if you lose mental capacity, you should appoint someone using an Ordinary Power of Attorney.
Who should I appoint?
The person appointed as your attorney can be any person over the age of 18 years who is able to assist you with the management of money or property, or who can make decisions on your behalf about how and where you live, and about your medical care – a relative, friend or professional adviser.
You may choose more than one attorney and specify if they are to act jointly, i.e. both must agree, or severally i.e. either attorney may make a decision without consulting the other attorney, or you can specify decisions for which they must act jointly and others where they may act individually. For a Property and Finance Lasting Power of Attorney your attorney cannot be bankrupt or subject to a Debt Relief Order.
When does my attorney act?
A properly prepared Lasting Power of Attorney is valid once it has been signed by all the people who need to sign it, which includes your attorneys and someone who acts as ‘Certificate Provider’. A Certificate Provider is an impartial person who confirms that you understand what you are doing in making your Lasting Power of Attorney, and that no one is forcing you to make it. Their role is a safeguard that is built into the process.
There are formalities associated with signing a Lasting Power of Attorney, and these must be carefully followed if the Lasting Power of Attorney is to be valid. There are links below to helpful information and for contact details of the Government agency that can help you.
Although your Lasting Power of Attorney is valid once is has been properly signed, it cannot be used until it has been registered with the Office of the Public Guardian. There is however no requirement to register your Lasting Power of Attorney immediately. A Lasting Power of Attorney can be registered even after you have lost capacity. When and if you choose to register is a personal decision, but the Power of Attorney cannot be used until registration is complete. There is a cost for registration.
What Protections are in Place?
An attorney must always act in your best interests. The Mental Capacity Act Code of Practice
provides more details on this. It also sets out five basic principles which your attorney must follow when working out whether and how to act in your best interests.
You can include binding instructions for your attorney in your Lasting Power of Attorney. Your attorney must follow these instructions. You can also set out your preferences, which your attorney must bear in mind, but is not bound to follow. Setting out your preferences can be very helpful for your attorney when they have to make decisions in your best interests. It can also be very helpful to have on-going discussions with your attorney about your preferences for your care. It is a way that you can take responsibility for yourself, even though ultimately someone may have to step in and make decisions for you.
When you make a Lasting Power of Attorney, you will need to have a Certificate Provider confirm that you understand what you are doing, and that no one is forcing you to make a Lasting Power of Attorney. Your Certificate Provider must be someone who is over 18, and who has known you well for at least two years. They could be a friend or neighbour, or a professional person such as your doctor. There are quite a lot of people who cannot be your certificate provider, such as your attorneys or members of your family.
As well as your Certificate Provider, you can also nominate up to five people who will be formally notified if your Lasting Power of Attorney is about to be registered. There is a process for them to raise concerns if they think that you were under pressure to make your Lasting Power of Attorney, or if they are concerned about fraud. You cannot nominate your attorney. People often choose close friends or family members as people to be notified, but you do not need to nominate anyone.
Life Sustaining Treatment
As part of a Health and Welfare Lasting Power of Attorney you must decide whether or not you wish your attorney to be able to give or refuse consent to life sustaining treatment. If you choose to give your attorney this authority, and need life sustaining treatment, but can’t make decisions, your attorney will be able to speak to doctors and give instructions as if they were you.
Life sustaining treatment means care, surgery, medicine or other help from medical professionals that is needed to keep someone alive.
Further Information
A lot of information about Lasting Powers of Attorney is available on the UK Government site (links below). You can prepare the necessary documentation to make a Power of Attorney on the site, or alternatively you can download the forms to enable you to prepare a Power of Attorney in paper form.
If you download the forms, you will also receive a very straightforward guidance booklet, which may well also assist those who choose to complete their forms online. You can also contact the Office of the Public Guardian if you do not have access to the internet, or need assistance to fill out your forms.
https://www.gov.uk/power-of-attorney/overview
The link below is to the page where you can download a complete pack of forms to make a Lasting Power of Attorney including the helpful guidance booklet:
https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney.'
Below is a link to the page, which explains who to contact if you are concerned about an attorney or how a Power of Attorney is being used.
https://www.gov.uk/report-concern-about-attorney-deputy
You can also contact the Office of the Public Guardian if you need help, for example in deciding if to make a Lasting Power of Attorney. They can be contacted at:
customerservices@publicguardian.gsi.gov.uk
You can find the Mental Capacity Act Code of Practice online at
www.gov.uk/opg/mca-code
Catherine J., UK and Anne McR., Australia
NOTE: Unless otherwise stated, the information in this document is based on the laws of England. People living in other places are invited to make their own inquiries. This document is for general information purposes only and does not constitute, and is in no way an alternative to obtaining legal advice.