Everything You Need To Know About Power Of Attorney
Power of attorney could be one of the most important decisions that you and your older parents make in life. That might sound like a big shout, but it’s true.
As life expectancy increases, so does the number of people diagnosed with dementia and other illnesses. If your parent becomes unwell then you, their spouse or your siblings can’t just access their bank accounts (even if it is to help them or pay for their care) or make health-related decisions. The person who does this is their appointed power of attorney (POA). It’s much better to get this in place before it is needed.
This detailed article contains everything you need to know about power of attorney in the UK. We asked you for any questions you had on this topic, so thank you if you submitted! They are answered here.
To make sure we’re giving you all the relevant information about power of attorney, we have teamed up with law firm Lever Law Solicitors, who specialise in elderly care to answer all your questions.
Power Of Attorney Explained
What Is Power Of Attorney?
Power of attorney is a legal document where someone (while they still have mental capacity) nominates a trusted relative (or someone else) to act on their behalf if they are no longer able to.
The person making the power of attorney (for example your mother) is the donor and the trusted person appointed to act on their behalf (you for example) is called the attorney.
It has to be made when the donor still has mental capacity and it only gives the attorney the legal authority to deal with third parties (such as accessing their bank account) if the donor loses mental capacity. That means that someone else (a spouse for example) cannot override choices set out in the legal document.
So whilst it is important to get POA in place, it will only be used if the person loses mental capacity and cannot look after their own affairs. It may never be used, but it’s definitely important to set it up.
Why Does My Parent Need Power Of Attorney?
Just as with a will, everyone (over the age of 18) should really have a power of attorney in place. It’s a common misconception that only the elderly should make one.
We don’t know what’s round the corner and if capacity is lost through illness or an accident, this will ensure decisions can easily be made on your elderly parent’s behalf. Such as paying bills, selling their home or helping to improve their daily routine and quality of life.
The sooner you and your parents can think about getting power of attorney in place, the better. It will make your life much easier at what could be a very stressful and upsetting time.
No one, not even a spouse or next of kin can automatically become someone’s power of attorney. It’s a legal document which you need to follow a set process to obtain – we have detailed this below.
What Are The Different Types Of Power Of Attorney?
You might have heard about lasting, ordinary or enduring power of attorney, and rightly be confused about how they differ. We’ve outlined it here for you.
Lasting Power Of Attorney
This is the most common type of power of attorney, and what your parents would likely get in place. There are two different types of lasting power of attorney (LPA), both providing peace of mind for the future:
Lasting Power Of Attorney – Property & Financial Affairs
If you became LPA for your parent, you would have the power to make financial decisions about money and property on their behalf. This includes: managing a bank or building society account, paying bills, collecting benefits or a pension, selling their home.
Lasting Power Of Attorney – Health & Welfare
This LPA means that as the donor you would have the power to make decisions about health and care related things like: your parent’s daily routine, for example:
– Washing, dressing and eating
– Medical care
– Making care decisions such as moving into a care home
– Life-sustaining treatment
Whilst it’s recommended to have both in place, your parent can appoint one LPA before the other. And different people can act as attorneys in each LPA.
Enduring Power Of Attorney
Enduring Power Of Attorney (EPA) is the old version – it was replaced by Lasting Power Of Attorney in October 2007. However if your parent made a valid EPA before this date then it’s legally valid and can still be used if mental capacity is lost.
Ordinary Power Of Attorney
An Ordinary Power Of Attorney is there if there is a need for someone to look after a person’s financial affairs for a temporary period time. For example, your parent might want to give someone an ordinary POA if they have a physical illness or injury, or they’re abroad for a long period of time.
With an Ordinary POA, the donor still has mental capacity, they are just not able to look after their finances for a period of time. The donor can restrict the attorney’s power, e.g. only giving them control of their bank account but not selling their property.
As an Ordinary POA is temporary, it’s possible to also have a Lasting Power Of Attorney (LPA) in place at the same time to provide peace of mind for the future.
Power Of Attorney In Scotland and Northern Ireland
The above relates to POA in England and Wales.
In Northern Ireland, there is Enduring Power Of Attorney to cover financial decisions and health. In Scotland there there are two types of Power of Attorney. The first is Continuing Power of Attorney and the second is a Welfare Power of Attorney.
|POA Type||What Does This POA Mean?||Country|
|LPA – Property & Financial||The attorney has the power to make financial decisions on behalf of the donor if they lose mental capacity. Such as paying bills, selling their house.||England|
|LPA – Health & Welfare||The attorney has the power to make health and care related decisions on behalf of the donor if they lose mental capacity. Such as moving into a care home and medical care.||England|
|Enduring Power Of Attorney||EPAs were replaced by LPAs in October 2007. An EPA dating from before then is still valid however.||England|
|Ordinary POA||Allows an attorney to look after a donor’s finances for a limited period of time. The donor will still have mental capacity but needs this specific support at this time e.g. if they are in hospital for a sustained period.||England|
|Continuing POA||The attorney can make financial decisions on behalf of the donor if they lose mental capacity.||Scotland|
|Welfare POA||The attorney can make health and care related decisions on behalf of the donor if they lose mental capacity.||Scotland|
|Enduring POA||This covers attorneys for both health and financial decisions if the donor loses mental capacity.||Northern Ireland|
When Does Power Of Attorney End?
In the UK, Lasting Power Of Attorney only ends when the donor dies or it is cancelled by the donor. If it was an Ordinary POA then that only lasts for a specific amount of time.
Is A Will More Important Than Power Of Attorney?
The two legal documents are equally important and go hand-in-hand really. Power of attorney ensures a person’s own decisions are recognised during their lifetime, and a will ensures their wishes are carried out once they have passed away. We’ve written a complete guide to wills which has lots more information there.
What Is Mental Capacity?
We’ve learnt that a Lasting Power Of Attorney is important in case the individual loses mental capacity. But what does this mean exactly?
Mental capacity means the ability to make our own decisions about our lives. Under the Mental Capacity Act 2005, this relates to an individual being unable to understand information relevant to a decision, retain that information long enough to make the decision, weighing up the information available to make the decision or communicate the decision.
An LPA only comes into effect when it is certified that the individual has lost mental capacity so cannot makes these own decisions and act for themselves.
Illnesses that can impact mental capacity include dementia, Alzheimers disease, brain injury or a stroke.
Who Decides If Someone Has Capacity?
This differs between regions of the UK, and is detailed in the table below.
|Country||Who Decides If Someone Has Capacity?|
|England, Wales||A certificate provider. This can be someone the donor (e.g. your parent) has known for two years or someone with relevant professional skills e.g. a lawyer or doctor.|
|Scotland||This must be a solicitor who is registered to practice law in Scotland or a doctor.|
|Northern Ireland||You don’t need a certificate provider.|
Can I Hold Lasting Power Of Attorney For Someone With Mental Capacity?
Whilst you can be named as the attorney on the documentation (which needs to be set up when the donor has mental capacity), LPA only comes into force when the donor is certified as not having mental capacity.
Setting Up Power Of Attorney
How Do You Get Power Of Attorney?
Setting up POA is relatively straightforward and can be made online or using paper forms. You can help your elderly parent set up POA online, but it needs to come from them.
Go to the Office Of Public Guardian and either download forms or create an account and fill it in online.
There is one form for a property and affairs LPA and one for a health and welfare LPA. Even if your parent wants the same person(s) to be their POA for both, the two forms still need to be filled in.
The POA form is free, but you need to pay to register the LPA.
How Quickly Can I Set Up Power Of Attorney?
After submitting the forms to The Office of the Public Guardian, there is a four week statutory waiting period. This is to allow significant time for people to object should they believe the power of attorney is not being set up for the correct reasons
How Do You Register A Lasting Power Of Attorney?
Before an LPA comes into effect, it needs to be registered with the Office of the Public Guardian. This can either be done by the donor (if they still have mental capacity) or the person named as the attorney can do this at any time – even after the donor has lost capacity.
When an LPA is made, it can be requested that certain people are notified when the LPA is registered. This helps to prevent against fraud or being forced into making one.
To register an LPA, the LP2 form needs to be filled out and sent to the Office of the Public Guardian along with the fee. This is £82 in England and Wales, £79 in Scotland and £151 in Northern Ireland. This could be the most important money you spend in your life as it will guarantee your wishes are carried out.
If two LPAs are being registered, then there are two forms and the fee needs to be paid twice.
Then, if the LPA has been filled in correctly and no one has objected to it (if people were notified as mentioned above), then the Office of the Public Guaridan must register it. They will notify the donor and any attorneys of this.
Can A Solicitor Help You Set Up POA?
Yes, you can also use a solicitor to help set up POA. They will oversee all of the process mentioned above.
How Much Does POA Cost In The UK?
If you’re submitting your own POA and not using a solicitor then the cost is £82 per LPA in England and Wales. This £82 is means tested based on the donor’s finances (not the attorney), so if they get income support or housing benefit or annual income is below £12,000 then they may be exempt. It’s important to note that disability living allowance and personal independence payment (PIP) is not eligible here.
If you use a solicitor, their fees need to be factored in too.
Can You Cancel Power Of Attorney?
Yes, the donor can cancel any POA that they made at any time, as long as they still have mental capacity. In legal terms, this is known as revoking a POA. To do this, you need to send the Office of the Public Guardian a written statement called the ‘deed of revocation’. An attorney cannot cancel or revoke the POA though.
Choosing The Attorney For Lasting Power Of Attorney
How Do My Parents Choose Who Should Be Their POA?
This is such an important decision, and choosing one person over another to be power of attorney doesn’t signify favouritism.
Your parents might be swayed by logistics, such as the child who lives closest to them. A person’s profession may be a logical reason for them being appointed POA. For example a sibling who is a doctor may be better suited to being named on the LPA Health and Welfare. Or they might look at who they believe to the better candidate to sort things out in a stressful situation.
More than one person can be named as the attorney. We cover this in more detail below.
How Do I Get POA For My Parents
Only the donor (the person who the POA is for) can ‘get’ POA. You can help them arrange it however. You can apply for POA online via the Office of the Public Guardian, fill in paper forms that you download from there or use a solicitor.
What’s The Address For The Office Of The Public Guardian?
You can send the filled in POA forms to The Office Of The Public Guardian, PO Box 16185, Birmingham B2 2WH.
What Is The Criteria For Becoming Your Elderly Parent’s Power Of Attorney?
The donor (your elderly parent in this case) can choose one or more people to become their attorney. They need to consider the decision wisely as the attorney(s) will be dealing with their personal matters.
The criteria for being named on the LPA is that you are over 18 and have never been declared bankrupt (this only refers to the Lasting Power Of Attorney – Property & Financial Affairs and Continuing or Welfare POA in Scotland).
Can Your Parent Nominate More Than One Person To Be Their POA?
There can be more than one attorney for each Lasting Power Of Attorney. This can work well if your parents for example want to give POA to all their children. They can either act jointly on all matters severally on all matters or jointly and severally.
This essentially means that they can make their decisions together but may also make their decisions separate from one another and need not consult each other about those decisions.
Can A Solicitor Act As A Power Of Attorney?
It’s important that the donor appoints an attorney they trust. This could be a family member or friend, but can also be their solicitor. Not all solicitors will enter into this, and it’s a not a decision to be taken lightly but can be a good solution.
Can You Live Abroad And Be A Power Of Attorney?
It is possible to have an attorney who lives abroad (for example, if a parent wants to appoint their son who lives in another country). If they’re the only attorney, or had to act jointly on all decisions however it could be difficult in some cases.
Can Anyone Challenge Power Of Attorney?
It is possible for the POA to be challenged but it’s not an easy process once it’s registered and in place. We would recommend that you get legal advice.
What Happens When It’s Too Late To Prepare a POA?
There are processes in place if POA has not been set up and someone becomes incapacitated. If your elderly parent has limited mental capacity but didn’t set up power of attorney, you will need to be appointed as their Court of Protection Deputy in order to manage their financial affairs and / or their health and welfare.
It’s not as simple or cheap a process as getting POA and you need to apply to the Court of Protection to get one or both. As a deputy, you will be supervised by the Office of the Public Guardian – they’re authorised to ensure you’re fulfilling your role effectively.
It could be an idea to get support from a solicitor if you need to go down this route.
How Do I Know If My Decision As Attorney Is In My Parent’s Best Interest?
Making an important decision on behalf of someone you love is always going to be difficult. During the decision making process, put your parent’s known wishes, beliefs or feelings above what you personally think. They chose you because they trusted you to make the best decision for them. You’ll then be able to move forward knowing that you reached an unbiased decision that was grounded in reason.
Fraud, Money & Power Of Attorney
Does A POA Take On Debt?
As an attorney you do not act as a guarantor and should only pay debts from the donor’s own resources. If the resources fall short you may have to get debt advice on their behalf but you yourself are not liable for their debt.
What Do I Do If The POA Steals Money And Abuses Their Position?
It is really rare that an attorney would exploit their position but unfortunately this can happen.
They might steal or misspend money, sell the house or put someone into care without discussions with others.
The Office of the Public Guardian (part of the Ministry for Justice) works to prevent power of attorney fraud occurring (it has a zero tolerance policy). If you think someone is abusing their power of attorney position, find out more about contacting the safeguarding team at the Office of the Public Guardian.
Can You Remove A Power Of Attorney Once It Has Been Granted?
Yes, you can add or remove attorneys by applying to the Office of the Public Guardian.
So there you have it, an exhaustive Q&A for everything you need to know about power of attorney. This is such an important area to consider as your parents get older (or even for yourself) and we hope you found it useful. Special thanks to Lever Law too for contributing to this. They have just been recognised in the UK Care Guide as one of the law firms dealing with wills, probate, power of attorney and trusts. So go and speak with them if you want to get a solicitor involved.
Power of attorney is a legal document where someone (while they still have mental capacity) nominates a trusted relative (or someone else) to act on their behalf if they are no longer able to. It’s one of the most important decisions a person can make in their lifetime. We don’t know what’s around the corner, and this ensures we are protected and our wishes carried out if we are not able to make decisions.
Your parents’ next of kin (a spouse, you, other siblings etc) cannot just take control of their finances or make health-related decisions. The only person who can do this legally is the nominated power of attorney. Having a POA in place ensures that this is smooth sailing in case your elderly parent loses mental capacity and cannot make decisions for themselves.
The short answer to that is EVERYONE! Power of attorney protects you, ensuring financial and health-related decisions are made with your best interests in mind. Whilst it is most pressing that elderly people get POA in place, it is something which everyone should consider as we don’t know what is around the corner.
As life expectancy increases, so does the number of people diagnosed with dementia which can result in them losing their ability to act for themselves. If this happens, it is important to have power of attorney in place. Someone can only get POA when they have mental capacity. If it too late for your parent, it is possible for you to apply to the Court of Protection to be their Deputy, but this is a more timely and expensive route to take. This is one example of why getting POA in place as soon as possible is so important.
If you’re submitting your own power of attorney and not using a solicitor then the cost is £82 per LPA in England and Wales. This £82 is means tested based on the donor’s finances (not the attorney), so if they get income support or housing benefit or annual income is below £12,000 then they may be exempt. It’s important to note that disability living allowance and personal independence payment (PIP) is not eligible here. The cost is £79 in Scotland and £151 in Northern Ireland.