Article reference: UK-IA-POA03

Giving power of attorney

This article explains what a power of attorney is, the different types, and how to make one.

 
 

Contents

 

 

What is Power of Attorney?

"Power of attorney" is the authority given by someone (in legal terms, called the Donor, or in Scotland, the Granter) to one or more other people (known as attorneys) to act on his or her behalf on certain specified matters such as dealing with his or her property or financial affairs

"Power of attorney" can mean either the document that grants this power (i.e. in the phrase "I have created a power of attorney") or the permission itself (as in the phrase "I have power of attorney over my mother's financial affairs").

You can create a power of attorney document well in advance of the attorney using the power. The benefit of doing so is that if you do need the attorney to act quickly, your permission has already been granted.

The most common types of power of attorney in England and Wales are:

  • Ordinary Power of Attorney (PoA), which can be general or limited to specific affairs
  • Lasting Power of Attorney (LPA), which is a special type of PoA, registered with the government and used in the event that the Donor loses mental incapacity to manage his or her property and affairs or personal welfare.

Ordinary Power of Attorney

An ordinary or general power of attorney is created for a set period of time in cases where the donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf. A general power of attorney will usually end either at a specified time or upon the request of the Donor at any time using a Deed of Revocation. It will automatically be revoked if the Donor loses mental capacity. There is no requirement for the general power of attorney to be registered.

Lasting Power of Attorney

A lasting power of attorney is very different. It allows someone to choose a person (an "attorney") to take decisions on their behalf if they subsequently lose mental capacity. Often this is used to give a family member permission to make decisions on an elderly relative’s behalf.

A Lasting Power of Attorney form replaced the Enduring Power of Attorney (EPA) in October 2007 as part of the Mental Capacity Act 2005.

The biggest difference between the old Enduring Power of Attorney and a Lasting Power of Attorney is that unlike an EPA, an LPA can extend to personal welfare matters as well as property and affairs.

Two different types of Lasting Power of Attorney are available:

  1. Property and Affairs Lasting Power of Attorney

Choose someone to make decisions about how to spend your money, and the way your property and affairs are managed. Once registered, and unless you have put a restriction on it, this type of LPA can be used by your attorney(s) straight away.

  1. Personal Welfare Lasting Power of Attorney

Choose someone to make decisions on your behalf relating to your personal healthcare and welfare. This includes decisions to give or refuse consent to treatment on your behalf, or about where you live. These decisions can only be taken on your behalf when the LPA has been registered and you lack the capacity to make the necessary decision for yourself.

Your rights: key principles behind a Lasting Power of Attorney

The Mental Capacity Act 2005 legislation is based upon five key principles:

  • The right of every adult to make their own decisions.
  • The assumption that an individual has the capacity to make decisions unless it can be proved otherwise;
  • The right for individuals to be supported to make their own decisions;
  • Individuals must retain the right to make what might be seen as eccentric or unwise decisions;
  • Anything done for or on behalf of people without capacity must be in their best interests;
  • Anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

Protecting your rights by acting now

You can draw up a Lasting Power of Attorney now or at any time that will only come into effect if you lose your mental capacity. In effect, having one protects you in event of an unforeseen accident, similar to having a will. They are not just for the elderly.

It becomes more and more difficult to deal with financial affairs as your dementia increases. Therefore, creating an LPA early and with time to think about exactly how you want your affairs to be managed is highly recommended.

What happens if you don’t have a Lasting Power of Attorney

If you have not already drawn up a Lasting Power of Attorney and you lose your mental capacity, an application has to be made to the Court of Protection or Office of Care and Protection in Northern Ireland. This process can be time consuming and expensive. It also means that you have no say in deciding who will look after your affairs as the Court (Office of Care and Protection in Northern Ireland), will decide.

Can I grant a Power of Attorney?

You can grant a power of attorney if you are over 18 years of age and have mental capacity. You can only grant the power of attorney to do things that you already have the right and capacity to do yourself.

Only you can make the decision to create a power of attorney for your affairs. If you instruct a solicitor to draft one for you, the solicitor should only accept instructions or authorisation from you, whether in person or in writing, and not, for example, from the person who is to become your attorney.

You can make a Lasting Power of Attorney if you already have a diagnosis of dementia but you must be able to show that you understand the effect of what you are signing. Get a doctor's certificate if there is any doubt about your capacity to understand. You can also revoke an LPA, but only while you are still considered to be mentally capable.

How to help someone without a Lasting Power of Attorney

Obtaining a power of attorney for someone who is already mentally incapacitated is much more difficult than acting for someone who already has one.

You will need to apply to the Court of Protection (Office of Care and Protection in Northern Ireland), to be appointed as a receiver (or a controller in Northern Ireland). Request to be sent the relevant forms and information on how to apply, including details of fees.

If the Court of Protection appoints you as a receiver (or controller in Northern Ireland), you will take control of the person's financial affairs and property and act on their behalf. You will be required to open a bank account in your own name, and you will need the Court's permission before making any decisions about capital, such as the incapacitated person's home or other property. You will usually be required to present yearly accounts of the person's finances.

In certain cases, where the incapacitated person's assets are valued at less than £16,000, you can usually apply to the Office of the Public Guardian (PGO) (Office of Care and Protection in Northern Ireland), for directions that, if granted, mean that the Court of Protection (Office of Care and Protection in Northern Ireland), does not need to appoint a receiver (controller in Northern Ireland). This is a less formal arrangement, in order to decide whether directions would be appropriate. Contact the PGO or Office of Care and Protection in Northern Ireland, for further details and the appropriate forms.

Can I be an attorney for someone else?

You can act as an attorney provided you are over 18 years of age, have mental capacity and are not bankrupt. An LPA for property and affairs is revoked if the attorney goes bankrupt. The one exception to this is where an attorney is the subject of an interim bankruptcy restriction order, in which case the power is suspended for as long as the order has effect.

Trust corporations such as banks and professional advisers such as solicitors can be an attorney and these professional attorneys can charge for their services.

Joint attorneys

A donor can appoint more than one attorney. If the attorneys are appointed as joint attorneys they must always act together. The advantage is that this makes fraud or improper acts by one attorney less likely. The disadvantage is that the whole power of attorney comes to an end if any one of the joint attorneys dies or becomes mentally incapable.

If the attorneys are appointed as joint and several attorneys, they may either act together or individually, and the power of attorney will continue in force if anything happens to one of the attorneys. The signature or action of one attorney is as valid as if they were the sole attorney.

However, it is possible to have the best of both alternatives by appointing joint and several attorneys and arranging for them to agree in writing to act together, or only after consultation, or as you wish.

Selecting an attorney

Consider the age and circumstances of any prospective attorney and whether he will have the time and energy for such a commitment.

You should choose somebody who knows you well and who you trust; this is often a partner or close family member. Most commonly, children of the donor are appointed as attorneys.

Complaints about attorneys

Attorneys are expected to act ‘reasonably’ and in your best interests. The Office of the Public Guardian and the Court of Protection do not monitor the way an attorney acts. However, they will consider any complaints about the way an attorney acts once the LPA has been registered. The Court of Protection will decide whether that person should remain an attorney or whether other arrangements should be made.

Responsibilities of an attorney

When you are appointed as an attorney, you are placed in a position of trust and you must act in the best interests of the donor. You can do only the things the donor has authorised you to do, and you cannot delegate any duties unless the donor has authorised delegation. An attorney must keep separate up-to-date accounts of the donor's affairs. When you are acting on the donor's behalf and have to sign any documents, you should sign your usual signature and add, beneath the signature, the words ‘attorney for ...

donor's name)’.

You should take the Power of Attorney to banks, building societies or wherever the donor has assets to prove that you have authority to act on the donor's behalf.

You can give:

  • A general authority, which allows an attorney to carry out any transactions on your behalf that you are legally able to delegate;
  • A more limited authority to deal with certain aspects of your property and affairs, as detailed by you on the LPA form.

Both the general and more limited authority can be qualified by certain conditions or restrictions. You can also appoint different attorneys to have different responsibilities, but it is advisable to keep arrangements as simple as possible.

The kinds of activities an attorney can carry out on your behalf include:

  • Signing cheques and withdrawing money from savings accounts;
  • Buying or selling shares or houses ;
  • Using your assets to finance your residential or nursing care.

The attorney(s) may also have limited powers to use your assets to benefit anyone for whom you might have been expected to make provision, to make gifts on special occasions or to make donations to charities that you are likely to have made.

A financial attorney has no power over you

The attorney(s) must not take advantage of your position to gain any benefit for themselves. They must keep your money and property separate from their own and from that of other people and they should keep accounts of any dealings on your behalf.

Attorneys must keep your affairs private unless you have stipulated otherwise on the LPA form or it can be demonstrated that it is in your best interests to pass on information to somebody else.

A person can refuse to act as attorney but if they agree to take on the responsibility, they immediately become subject to the duties of attorney. Failure to comply could mean the Lasting Power of Attorney is cancelled, and in some cases the attorney may be taken to court on charges of fraud or negligence. The role carries with it power and responsibility and should not be entered into lightly.

Creating a Lasting Power of Attorney

A Lasting Power of Attorney must be created in a prescribed format. The prescribed forms are quite long but give you all the alternatives you might want or need, so they are flexible. Very few people need advice from anyone but a trusted relative. You can make more than one Lasting Power of Attorney appointing different attorneys to do different things. You can give the attorney a general authority to carry out all transactions with immediate effect.

Alternatively, you can set limits on the type of transactions you authorise the attorney to carry out on your behalf, for example you can state that the attorney should only deal with your money or your property, whether now or in the future.

You can also specify that the power should not come into effect unless you become mentally incapacitated, and you can require that your attorney produce medical evidence from one or more doctors before the power comes into effect. If you create the document some years before you might want to use it, you may wish to tell your bank and any other relevant institution that you have created it, although your attorney may not be permitted to use it until it has been registered, if it contains that restriction. This is because some banks and building societies do not like to accept an enduring power of attorney that was created several years before it came into effect in case your circumstances have changed and you may no longer wish the person appointed to exercise that power.

Revoking a Lasting Power of Attorney

If you have created a Lasting Power of Attorney and no longer want it to have effect, you can cancel it if you have full mental capacity. You will need the consent of the Court of Protection (Office of Care and Protection in Northern Ireland).

If you cancel a Power of Attorney, you should inform your attorney in writing. You should also tell all the banks and anywhere else that you have invested money that the document has been revoked.

If you decide to create a new Power of Attorney, you should add a clause to the new one stating that you revoke the previous Power of Attorney or that you revoke all Powers of Attorney made previously by you.

A Deed of Revocation can be used to cancel an Ordinary Power of Attorney, at any time after the power has been granted. It is necessary to inform the attorney(s) of the revocation as the attorney's authority does not cease until he or she receives notice of the revocation. A copy of the Deed of Revocation should be sent to each attorney.

Role of the Court of Protection and the Office of the Public Guardian

The Court of Protection is an office of the Supreme Court with jurisdiction in England and Wales. Its function is to protect the finances and property of people who are mentally incapable of dealing with their own affairs.

Proceedings are confidential, in order to protect people's privacy, and are kept as informal as possible. Most of the court's business is conducted by post.

The Office of the Public Guardian is an executive agency within the Lord Chancellor's department. Its protection division is responsible for the day-to-day administration of cases that come under the jurisdiction of the Court of Protection. It is also responsible for the registration of EPAs.

What next

We highly recommend that you make a Lasting Power of Attorney while you are mentally capable just as you would create a will in advance of foreseeing death. It is effectively a safety measure in case of accident or sudden ill health as well as being useful as you near needing greater care. You can do so by visiting the government website at www.lastingpowerofattorney.service.gov.uk/home.

If you're looking for an Ordinary or General Power of Attorney document to give someone authority to act on your behalf you can find one here.

Helpful links and further information

Citizens advice bureaux (CAB): www.citizensadvice.org.uk

Office of the Public Guardian: www.gov.uk/government/organisations/office-of-the-public-guardian

Please note that the information provided on this page:

  • Does not provide a complete or authoritative statement of the law;
  • Does not constitute legal advice by Net Lawman;
  • Does not create a contractual relationship;
  • Does not form part of any other advice, whether paid or free.
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