There may come a point in your life where you are unable, through illness or as you get older, to manage your healthcare and welfare or property and financial affairs.
As your loved ones don’t have an automatic right to make decisions on your behalf, this can create problems when trying to sort out your care or look after your finances. A power of attorney is designed to help prepare for this.
What is power of attorney?
Power of attorney is a legal document that lets you appoint someone, or more than one person that you trust, to look after your affairs if you are no longer able to. There are different types of power of attorney, depending on what you want to achieve.
It must be put in place while you still have the ability to make and communicate decisions, known as mental capacity. The person or people you appoint to make those decisions on your behalf are called attorneys, and you are referred to as the donor. Your attorneys pledge to act in your best interests and follow the instructions and any preferences you give.
What is a lasting power of attorney?
A lasting power of attorney (LPA) is a commonly used power of attorney. It replaced the enduring power of attorney (EPA) in 2007, though if you have an EPA from before then it can still be registered. An LPA can come into effect at the point you make it or in the future, if you lose mental capacity.
You have to register an LPA with the Office of the Public Guardian (OPG) to make it legally binding.
The different types of lasting power of attorney
There are two types of LPA, but you don’t have to make them at the same time. For example, you could choose to register only one, or you could have different attorneys for each. The two types of LPA are:
Property and financial affairs lasting power of attorney
This type of LPA can be used as soon as the donor chooses. This can be as soon as it is registered, or when the donor loses mental capacity.
It lets attorneys perform administrative tasks, such as opening and closing bank accounts on your behalf, claiming benefits and pensions, paying bills or selling property.
Health and welfare lasting power of attorney
This type of LPA only comes into force once the donor has lost their mental capacity. It gives attorneys the right to make decisions about your health and welfare, such as moving into a care home and giving or refusing medical treatment.
When you make the LPA, you can include details of whether you want to give consent for or refuse ‘life-sustaining treatment’.
How to get a power of attorney
You don’t have to use a solicitor to make a power of attorney. For example, in England and Wales, you can create your LPA for free and complete it online or on paper. The application form comes with guidance, but you can also phone the OPG for advice.
An LPA is an important legal document. So if you’re not sure about how to complete the forms, your case is a complex one, or you would like extra safeguards, you may want to consider using a solicitor. Any mistakes in the application could cause issues later on. For example, your application could be rejected and you may have to pay to have it amended.
You could choose to make a power of attorney at the same time as writing a will with a solicitor.
How much is a power of attorney?
If you live in England and Wales, you can apply online and use the guidance notes to help you fill in the form. This won’t cost you anything, though you will need to pay a fee to register the LPA.
If you use professional services you may be looking at fees of around £300 to £600 to fill out the form and apply for a single LPA. But it can cost more or less depending on the practice and how straightforward your situation is. It’s worth getting a few quotes before going ahead. You can find a solicitor using the Law Society’s Find a Solicitor search.
How to register a lasting power of attorney
This is the process for registering an LPA if you’re in England and Wales:
- Choose your attorney.They must be over 18, but could be anyone you trust. They don’t have to be UK nationals and can be based overseas. Crucially, pick someone able to stay on top of your affairs. This might be your partner, friends, family, or a professional such as a solicitor, though they will charge a fee.
- Sign the LPA. Once you have signed the form, it must then be signed by your witness (who must be over 18 and not your attorneys), and then a certificate provider who will verify that you have the capacity to set up an LPA. They can’t be related to you or your attorneys, but can either be someone who has known you for at least two years, such as a friend, colleague or neighbour, or a professional, such as your GP or solicitor. A professional may charge for this service. Finally, your attorneys sign the form, which is also witnessed.
- Send the forms to the Office of the Public Guardian.Your solicitor can do this for you if they are creating your LPA. It costs £82 to apply for an LPA in England and Wales (so £164 if you are applying for both types). You may be eligible for a reduced fee if you earn under £12,000 a year before tax or receive certain benefits.
- Bear in mind that it may take up to 20 weeks for it to be registered, though it’s usually quicker if you’ve made and paid for the LPA online.
Power of attorney works slightly differently in Scotland and Northern Ireland. Find out more at the OPG (Scotland) and NI Direct.
How to change a lasting power of attorney
Once an LPA is in use, it will continue until you die. However, if you still have mental capacity and want to cancel an LPA you can contact the OPG to ask for it to end, or to change or remove an attorney.
You’ll need your original power of attorney documents and a written ‘deed of revocation’ signed by you and a witness.
What is an ordinary power of attorney?
If you want someone to manage your affairs for only a short time, perhaps for a period when you are overseas or during a brief illness when you won’t be able to make decisions, you can set up an ordinary power of attorney instead of an LPA. This is sometimes also called a limited power of attorney. There is no standard form to fill in, but there is essential wording to include.
This does not need to be registered with the OPG and will last only until you revoke it, or lose mental capacity.
» MORE: How to start estate planning
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