Power of attorney - What is it all about?

There are a number of reasons why you might need someone to make decisions for you or act on your behalf:

• This could just be a temporary situation: for example, if you're in hospital and need help with everyday tasks such as paying bills.
• You may need to make longer-term plans if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future.

What is mental capacity?

Mental capacity means the ability to make or communicate specific decisions at the time they need to be made. To have mental capacity you must understand the decision you need to make, why you need to make it, and the likely outcome of your decision.

Some people will be able to make decisions about some things but not others. For example, they may be able to decide what to buy for dinner, but be unable to understand and arrange their home insurance. Alternatively, their ability to make decisions may change from day to day.

Needing more time to understand or communicate doesn’t mean you lack mental capacity. For example, having dementia doesn't necessarily mean that someone is unable to make any decisions for themselves. Where someone is having difficulty communicating a decision, an attempt should always be made to overcome those difficulties and help the person decide for themselves.

What are the different types of power of attorney?

There are different types of power of attorney and you can set up more than one.

Ordinary power of attorney

This covers decisions about your financial affairs and is valid while you have mental capacity. It is suitable if you need cover for a temporary period (hospital stay or holiday) or if you find it hard to get out, or you want someone to act for you.

Lasting power of attorney (LPA)

An LPA covers decisions about your financial affairs, or your health and care. It comes into effect if you lose mental capacity, or if you no longer want to make decisions for yourself. You would set up an LPA if you want to make sure you're covered in the future.

Enduring power of attorney (EPA)

EPAs were replaced by LPAs in October 2007. However, if you made and signed an EPA before 1 October 2007, it should still be valid. An EPA covers decisions about your property and financial affairs, and it comes into effect if you lose mental capacity, or if you want someone to act on your behalf.

More information about ordinary powers of attorney

An ordinary power of attorney allows one or more person, known as your attorney, to make financial decisions on your behalf. It's only valid while you still have the mental capacity to make your own decisions. You may want to set one up if, for example:

• you need someone to act for you for a temporary period, such an when you’re on holiday or in hospital
• you’re finding it harder to get out and about to the bank or post office, or you want someone to be able to access your account for you
• you want someone to act for you while you’re able to supervise their actions.

You can limit the power you give your attorney so that they can only deal with certain assets, for example, your bank account but not your home.

An ordinary power of attorney is only valid while you have the mental capacity to make your own decisions. If you want someone to be able to act on your behalf if there comes a time when you don’t have the mental capacity to make your own decisions you should consider setting up a lasting power of attorney.

More information on lasting powers of attorney

A lasting power of attorney (LPA) is a way of giving someone you trust, your attorney, the legal authority to make decisions on your behalf if you lose the mental capacity to do so in the future, or if you no longer want to make decisions for yourself.

There are two types of LPA:

• LPA for financial decisions
• LPA for health and care decisions.

LPA for financial decisions

An LPA for financial decisions can be used while you still have mental capacity or you can state that you only want it to come into force if you lose capacity.

An LPA for financial decisions can cover things such as:

• buying and selling property
• paying the mortgage
• investing money
• paying bills
• arranging repairs to property.

You can restrict the types of decisions your attorney can make, or let them make all decisions on your behalf.

If you’re setting up an LPA for financial decisions, your attorney must keep accounts and make sure their money is kept separate from yours. You can ask for regular details of how much is spent and how much money you have. These details can be sent to your solicitor or a family member if you lose mental capacity. This offers an extra layer of protection.

LPA for health and care decisions

This covers health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:

• where you should live
• your medical care
• what you should eat
• who you should have contact with
• what kind of social activities you should take part in.

You can also give special permission for your attorney to make decisions about life-saving treatment.

How do I set up a power of attorney?

Setting up an ordinary power of attorney

If you want to set up an ordinary power of attorney you should contact your local Citizen’s Advice or get advice from a solicitor as there is a standard form of wording that must be used.

Setting up a lasting power of attorney

1. The Office of the Public Guardian (OPG) is a government organisation, whose role is to register powers of attorney. It also provides support services to attorneys and investigates complaints about attorneys. Contact the Office of the Public Guardian to get the relevant forms and an information pack. You can download the forms or fill them out online.
2. You can fill out the forms yourself, or with the help of a solicitor or local advice agency. Taking professional advice can prevent problems later on, especially if you’re unsure of the process or your affairs are complex.
3. Have your LPA signed by a certificate provider. This is someone who confirms that you understand it and haven’t been put under any pressure to sign it. The certificate provider must be someone you know well or a professional person such as a doctor, social worker or solicitor.
4. The LPA must be registered with the Office of the Public Guardian before it can be used. There's a fee of £82 to register your LPA. If you’re on a low income, you may be eligible for a 50% discount, and if you’re receiving certain benefits you won’t have to pay anything at all. You must register your LPA while you still have the mental capacity and it can’t be used during the registration process which takes about 9 weeks. If you lose mental capacity but signed the LPA while you still had mental capacity, your attorney can register it for you.

How much does it cost to set up a lasting power of attorney?

You will need to register the LPA before you can use it. In England and Wales, the registration fee is £82 for each LPA – so it costs £164 to register both an LPA for property and financial affairs and an LPA for health and welfare.

You may be exempt from paying the fee if you're on a low income or you receive certain income-related benefits.

Do I need a solicitor?

You don't have to use a solicitor to create an LPA. The application forms from the Office of the Public Guardian (OPG) contain guidance to help you fill them out. Alternatively, you can fill them in online and phone the OPG helpline if you have any issues or concerns.

If you want to use a solicitor, you'll need to pay them to complete the form for you. Fees for creating an LPA vary, so you might want to contact a few to compare their fees and the service they offer.

How do I make changes to my power of attorney?

You generally can't make changes to your LPA after it's been registered. It may be possible to remove one of your attorneys, but it's important to seek advice from the Office of the Public Guardian before doing so, because removing an attorney may cause your LPA to end.

If you have mental capacity, you can also cancel (revoke) your LPA.

What if I'm having problems with my attorney?

If you're unhappy with the decisions that are being taken, there are a number of ways you can make a complaint.

• If you think you’re in immediate danger, contact your local police force or call 999 in an emergency.
• Raise your concerns with the Office of the Public Guardian, which has responsibility for monitoring attorneys and deputies and can investigate allegations of mistreatment or fraud. It can report concerns to another agency, such as the police or social services, if appropriate.
• To speak to someone confidentially about your concerns about financial misuse or abuse, call the Hourglass helpline on 01255 421621.