Power of Attorney

Introduction to power of attorney

A power of attorney is a legal arrangement allowing one person (the donor) to grant another person (the attorney) the authority to make decisions on their behalf. While it might seem like a complex or daunting topic, establishing a power of attorney is a crucial step in safeguarding your future wishes and ensuring you have the right support in place if you become unable to make certain decisions for yourself. In the UK, power of attorney documents are governed by specific legislation, and it is important to understand how these documents work, who can act as an attorney, and the range of decisions an attorney can legally undertake.

Establishing a power of attorney can provide peace of mind for both you and your loved ones. By appointing a trusted individual to handle finances, health, or welfare decisions, you can be confident that your affairs will be managed in line with your personal beliefs and values. This guide will explain the different types of power of attorney available, their legal status, and the steps required to create these vital documents.

Power of attorney is not just for older adults. Anyone aged 18 or over who has the mental capacity to make legal decisions can put a power of attorney arrangement in place. This ensures that, should you experience an illness or accident that impairs your ability to make decisions, your chosen attorney can act quickly on your behalf. Choosing a suitable attorney is key, as they should be someone you trust implicitly, who understands your preferences, and who is prepared to take on the responsibility of managing your affairs.

Organisations such as the Office of the Public Guardian (OPG) monitor how attorneys carry out their role in England and Wales, while the Office of Care and Protection serves Northern Ireland, and the Office of the Public Guardian (Scotland) supports Scottish powers of attorney. Each entity has its own regulations and guidelines to protect individuals from abuse or misuse of power. Decision-making responsibilities can include management of bank accounts, payment of bills, and in some cases, making health and welfare decisions like where you live or what medical treatments you receive.

While many people hope never to need a power of attorney, having one set up in advance is akin to an insurance policy for your decision-making. Once you lose mental capacity, it may be too late to arrange a new power of attorney, potentially leading to more complicated and expensive legal processes for your loved ones. In this introduction, you will gain a high-level understanding of the benefits of having a power of attorney, the potential complexities of the process, and the broader context in which these documents operate.

You may also have come across the term “lasting power of attorney” (LPA), which is the most common form of power of attorney in England and Wales. Throughout this guide, we will explore the specific features of LPAs, how you can create one, and the range of decisions your appointed attorney can make. By the end of this guide, you should have a thorough grounding in what power of attorney is all about, its importance, and the steps you can take to ensure your best interests are legally protected.

Understanding mental capacity

Mental capacity is the ability to make decisions for yourself. In the context of power of attorney, it is central to understanding when and how an individual can put legal arrangements in place to allow someone else to make decisions on their behalf. The Mental Capacity Act 2005 provides the framework for assessing capacity and outlines crucial principles that must be upheld in England and Wales. Although there are slight differences in legislation in Scotland and Northern Ireland, the concept of mental capacity remains consistent across the UK.

Many people think of mental capacity purely as a medical issue, but it encompasses legal, ethical, and practical dimensions as well. To have mental capacity means you can understand relevant information about a decision, retain that information long enough to consider it, weigh up the pros and cons, and communicate your decision. If you are unable to do one or more of these steps, you may be considered to lack capacity for a specific decision at that time. Importantly, capacity can fluctuate, and someone may lack capacity for one decision but still have it for another.

Common scenarios where mental capacity becomes crucial include serious illnesses, brain injuries, dementia, or conditions that impair cognitive function, although temporary factors—such as the effects of medication, shock from an unexpected event, or an acute mental health episode—can also affect capacity. It is this uncertainty and potential for sudden changes in health that emphasises why organising a power of attorney is often recommended as a precautionary measure.

A key principle is that individuals must be assumed to have capacity unless proven otherwise. Assessments should never be based on age, appearance, or medical diagnosis alone. Each decision must be assessed on a case-by-case basis. For instance, a person might lack capacity to handle complex financial transactions but still have capacity to decide what they would like to eat or wear. Equally, capacity can be regained, so professional assessments often consider the possibility of improvement or recovery.

Healthcare professionals, social workers, solicitors, and family members can play a role in determining capacity, but formal capacity assessments are usually carried out by medical or social care professionals with the relevant expertise. They follow guidelines set out in the Mental Capacity Act 2005 Code of Practice, which emphasises that all practical steps should be taken to help the individual make their own decision before concluding that they lack capacity.

Understanding how capacity is assessed is especially important in the power of attorney process. At the time of creating and signing a power of attorney, the donor must have capacity. If there are doubts, an assessment may be required to confirm that the donor fully understands the arrangement. Once a valid power of attorney is in place, if the donor later loses capacity, the attorney can step in to handle the donor’s affairs.

By grasping how mental capacity is determined, you can better appreciate why acting sooner rather than later is beneficial. Setting up a power of attorney when you have clarity of mind ensures that your own interests remain central if your cognitive ability changes in the future. This also protects your loved ones from having to navigate lengthy or costly legal processes and ensures your attorney’s actions align with your wishes as closely as possible.

Reasons for having a power of attorney

Planning ahead is something many people associate with writing a will or considering retirement savings. However, putting a power of attorney in place should also be a key component of your long-term planning. A well-drafted power of attorney can save your loved ones considerable stress, time, and money if you ever become unable to manage your affairs, either temporarily or permanently. Below are some of the most compelling reasons why setting up a power of attorney is so important.

1. Ensuring continuity of financial affairs
One of the most practical reasons for having a power of attorney is ensuring your financial affairs continue to be managed if you are unable to do so. This could involve accessing bank accounts, paying bills, or organising benefits and pensions. Without a valid power of attorney, even close family members may struggle to handle basic financial tasks on your behalf, potentially leading to missed payments or complications.

2. Protecting your health and welfare
A health and welfare LPA can provide clarity about your preferences for medical treatment, living arrangements, and general care. If you lose the capacity to express your wishes, your appointed attorney can make decisions that align with your values and best interests. This can be particularly relevant in cases of severe illness, accidents, or conditions such as dementia.

3. Avoiding court intervention
If you lose capacity without a power of attorney in place, your family may have to apply to the Court of Protection (or equivalent body in Scotland and Northern Ireland) to gain the authority to manage your affairs. This process can be lengthy, costly, and emotionally taxing. By contrast, a power of attorney sets out your choices in advance, minimising the need for court intervention.

4. Reducing stress for loved ones
Handling the affairs of someone who has lost capacity can be overwhelming, especially if there is no prior legal authority in place. Having a power of attorney not only grants the necessary legal power but also offers emotional reassurance that decisions are being made in line with your wishes, helping families avoid conflict or guesswork.

5. Flexibility and control
A power of attorney does not necessarily mean surrendering all control. A property and financial affairs LPA, for example, can be used while you still have capacity if you choose. This can be helpful if you want assistance with handling complex financial matters, or if you spend extended periods abroad. You retain the power to continue making decisions yourself, but have the safety net of an attorney who can step in as needed.

6. Planning for unforeseen circumstances
Some people assume power of attorney is only for the elderly or those with a known medical condition. However, accidents or sudden illnesses can happen at any age. By preparing in advance, you avoid uncertainty and ensure someone you trust is legally permitted to act on your behalf quickly and effectively.

In essence, a power of attorney is about maintaining your autonomy and dignity in challenging situations. It is not solely about financial security but also about preserving your personal preferences in aspects of daily living, health care, and overall wellbeing. Whether you are considering it for yourself or encouraging a loved one to take action, a power of attorney is a practical and compassionate step towards protecting one’s future.

Types of power of attorney in the UK

There are several types of power of attorney in the UK, each designed to address specific needs and circumstances. Understanding the differences is crucial to selecting the right document for your situation. The nature of your requirements—whether financial, health-related, or both—will determine which form of power of attorney is most suitable.

Below is a table summarising the main types of power of attorney in England and Wales, alongside their key features. (Note that Scotland and Northern Ireland have similar but distinct versions of these documents under their respective laws.)

Type of POAKey FeaturesLasting Power of Attorney (LPA) – Property and Financial AffairsCovers money management, property transactions, bill payments, and general financial decisions. Remains valid even after donor loses mental capacity.Lasting Power of Attorney (LPA) – Health and WelfareCovers decisions about medical treatment, day-to-day care, living arrangements. Activated only if donor loses mental capacity.Enduring Power of Attorney (EPA)Covers financial matters only. No longer possible to create a new EPA since 2007, but existing EPAs remain valid.

Lasting power of attorney (LPA)

An LPA is the most commonly used form of power of attorney in England and Wales. It was introduced by the Mental Capacity Act 2005 to replace the older EPA system. Two main categories exist under LPAs:

• Property and Financial Affairs LPA: This grants your chosen attorney authority to manage your finances and property. It can be used even while you retain capacity if you wish, or alternatively only when you no longer have the ability to manage these matters yourself.

• Health and Welfare LPA: This covers personal matters such as medical treatment, care arrangements, and daily living decisions. It only takes effect once you lose the capacity to make decisions on your own.

An LPA must be signed by a certificate provider who confirms you understand the nature and scope of the document and that you are not under undue influence to create it.

Enduring power of attorney (EPA)

EPAs existed before LPAs were introduced and could only cover property and financial affairs. Although new EPAs can no longer be created since 1 October 2007, existing EPAs remain legally valid. If you have an EPA set up before that date, it can continue to be used, but you may consider replacing it with an LPA if you want the broader scope that includes health and welfare decisions.

Ordinary power of attorney

An ordinary power of attorney is a short-term arrangement that usually applies only while you have mental capacity. It may be suitable if you need someone to manage specific affairs—for example, if you are abroad for an extended period and need a trusted person to deal with a property transaction or oversee your financial commitments in your absence. Once you lose capacity, an ordinary power of attorney immediately becomes invalid, so it does not provide long-term security.

Scottish and Northern Ireland variations

In Scotland, continuing powers of attorney and welfare powers of attorney broadly mirror the functions of LPAs in England and Wales. In Northern Ireland, Enduring Powers of Attorney still apply, but legislation is evolving to consider more comprehensive arrangements similar to LPAs. Always check the specific regulations in your part of the UK to ensure you are creating the correct type of document.

Each type of power of attorney has its unique scope and limitations. By understanding these distinctions, you can make an informed decision that suits your current and future needs. If you are uncertain which form of power of attorney is best for you, consider seeking professional advice to guide you through the process.

Choosing and appointing an attorney

Selecting who will act as your attorney is a deeply personal choice and one that should not be taken lightly. Your attorney will be entrusted with significant authority, potentially overseeing your financial transactions, healthcare decisions, or both. It is therefore essential to choose someone who is not only trustworthy, but also capable of handling the specific responsibilities you wish them to undertake.

Factors to consider

1. Trust and reliability: The most critical attribute of a potential attorney is trustworthiness. This individual may manage large sums of money, personal health decisions, and other vital matters. You should feel confident they will act in your best interests, without personal gain overshadowing their duties.

2. Practical capability: If the attorney’s role includes managing finances, they should have some competence in budgeting, paying bills, and dealing with financial institutions. For health and welfare decisions, emotional intelligence and empathy are crucial traits. An attorney does not need to be a financial or medical expert, but they should be organised and willing to seek professional advice when necessary.

3. Location and availability: While an attorney can technically act from anywhere, practical considerations like distance and time zones can matter. If immediate decisions are required or there is an urgent need to sign documents, having an attorney who is readily contactable is beneficial.

4. Number of attorneys: You can appoint more than one attorney. Some people choose two or more attorneys, assigning them joint or joint and several responsibility. This ensures checks and balances, but it can also introduce complexity. Joint attorneys must agree on every decision, which can be useful for ensuring consensus but may slow down urgent matters. Joint and several attorneys can act independently, offering flexibility if one attorney is unavailable.

5. Successor attorneys: It is good practice to nominate one or more successor attorneys in case your primary attorney can no longer serve. This futureproofs your power of attorney arrangement and prevents disruption if your appointed attorney is unwilling or unable to continue.

Practical steps to confirm suitability

• Conversation: Before finalising your decision, have an open discussion with the person(s) you are considering. Outline your wishes, the responsibilities involved, and gauge their willingness to serve. It is also an opportunity for them to ask questions and understand the extent of their role.

• Written guidance: Some donors choose to provide written guidance or preferences. While not legally binding, it can help your attorney understand what you would want in various scenarios—especially for health and welfare decisions.

• Professional advice: If you have complex financial arrangements, property portfolios, or concerns about potential conflicts, consult a legal professional for tailored advice on appointing attorneys and drafting the power of attorney document. This can help you avoid complications further down the line.

Formalities and declarations

All attorneys must sign a statement confirming they understand their role and the obligations under the relevant legislation (for instance, the Mental Capacity Act 2005 in England and Wales). Attorneys must abide by the principles set out in the act, including acting in the donor’s best interests and enabling the donor to participate in decision-making as far as possible.

Choosing and appointing the right attorney can give you reassurance that your affairs will be handled with care and integrity. By considering trust, capability, location, and the number of attorneys, as well as clarifying your intentions through open conversations and written preferences, you can help ensure your power of attorney arrangement aligns with your values and offers robust protection for your future.

Duties and responsibilities of an attorney

Once you have appointed an attorney under a valid power of attorney, the individual taking on this role must adhere to a set of duties and responsibilities, which are designed to safeguard your best interests. These obligations stem from both the legal document itself and the broader frameworks of the Mental Capacity Act 2005 (in England and Wales), or the equivalent legislation in Scotland and Northern Ireland.

Acting in the donor’s best interests

The primary duty of any attorney is to act in the donor’s best interests. This means they must make decisions that reflect the donor’s wishes, values, and beliefs, as far as these can be ascertained. If the donor has lost capacity, attorneys should consider any previously expressed preferences, including conversations, written statements, or informal notes. Where possible, they should also consult relevant family members or professionals to gather more information.

Keeping finances separate

Attorneys appointed to manage property and financial affairs should always keep the donor’s finances separate from their own. This includes using different bank accounts and ensuring accurate records of income, expenses, and transactions related to the donor’s money. Mixing personal funds with the donor’s accounts can raise questions about possible misuse of money, and it is also contrary to legal guidelines set out by the Office of the Public Guardian (OPG).

Maintaining detailed records

The importance of record-keeping cannot be overstated. Attorneys should maintain clear and organised records of all financial transactions, decisions made on behalf of the donor, and any correspondence with professionals such as doctors or care providers. Accurate record-keeping provides transparency, helps avoid disputes, and serves as evidence that decisions were made in the donor’s best interests.

Consulting the donor whenever possible

Even if the donor has diminished capacity, attorneys must involve them in decision-making as far as is practicably possible. This could mean explaining options in simpler terms or using communication aids to help the donor express their preferences. Attorneys should not assume that a donor who has partial capacity cannot contribute; each decision should be assessed on its own merits.

Respecting confidentiality

Any information obtained about the donor—financial, medical, or personal—should be treated as confidential. Attorneys should share details with third parties only if it is necessary to carry out their role effectively. Disclosing the donor’s affairs without good reason breaches the trust placed in the attorney and may be considered a violation of data protection laws.

Avoiding conflicts of interest

Attorneys should avoid situations where their personal interests conflict with those of the donor. For instance, making a decision that benefits the attorney financially at the donor’s expense would breach their duty of care. If a conflict of interest is unavoidable, the attorney should seek professional advice or consult the OPG or the Court of Protection to ensure decisions remain objective and fair.

Monitoring and oversight

The OPG has the authority to investigate complaints or concerns about an attorney’s actions. While day-to-day monitoring may not be routine, any reported misconduct can trigger an inquiry. If an attorney is found to have acted contrary to the donor’s best interests, the OPG or the Court of Protection can remove them and, in severe cases, refer the matter for criminal investigation.

By fulfilling these duties diligently, an attorney can ensure the donor’s affairs are managed effectively and ethically. A well-informed attorney will also know when to seek expert guidance—be it legal, financial, or medical—to ensure their decisions align with best practice and the donor’s established wishes. Understanding these responsibilities is essential for anyone considering taking on the role of attorney or appointing someone to act on their behalf.

How to create a lasting power of attorney

A lasting power of attorney (LPA) is one of the most robust and flexible arrangements you can set up to protect your future interests. Creating an LPA involves several formal steps to ensure that the donor fully understands the implications of granting such powers and is doing so voluntarily. Below is a general process outline for England and Wales, which you can adapt to the legislation in Scotland or Northern Ireland.

1. Determine the scope of your LPA

First, decide whether you need a property and financial affairs LPA, a health and welfare LPA, or both. Reflect on your circumstances, the complexity of your finances, and the importance of healthcare decisions. Some people opt for both to cover all eventualities. Think carefully about the authority you wish to give your attorney and whether there are specific instructions or preferences you want to include.

2. Choose your attorney(s)

Selecting the right person or people is a crucial step. Assess trustworthiness, availability, and their ability to handle the responsibilities involved. If you have more than one attorney, decide how they will act: jointly, jointly and severally, or a combination for different types of decisions. You can also name replacement attorneys to step in if your chosen attorney can no longer serve.

3. Complete the relevant forms

In England and Wales, the standard LPA forms can be obtained from the Government’s website or via a solicitor. Form LP1F is for property and financial affairs, while form LP1H is for health and welfare. You will need to fill out personal details, attorney details, instructions (binding legal directions for your attorney), and preferences (non-binding guidance). Pay attention to each section to ensure the form reflects your wishes accurately.

4. Identify a certificate provider

A certificate provider must sign the LPA, confirming that you have mental capacity and are not under undue pressure to create the document. This role can be filled by a professional, such as a solicitor or doctor, or by someone who has known you personally for at least two years. It cannot be a family member or an attorney you are appointing.

5. Sign and date the forms correctly

Signing the forms in the correct order is crucial. The donor must sign first, followed by the certificate provider, and finally the attorney(s). Each section requires specific witness signatures. Failing to follow the correct sequence can invalidate the LPA, so read the guidance notes carefully or consult legal advice.

6. Register your LPA

Once the forms are completed, they must be registered with the Office of the Public Guardian (OPG) before the LPA can be used. Send the forms, along with the required fee, to the OPG. Registration can take several weeks or even months. If any errors are found, the application may be returned, leading to delays.

7. Store and share copies

After registration, you will receive an official stamped copy of your LPA. Keep it in a safe place, and consider providing a copy to your attorney(s) and any relevant professionals like your GP or solicitor. This ensures the LPA can be used quickly if required.

8. Review periodically

Circumstances change over time. You may wish to review your LPA periodically to ensure the chosen attorney, the scope of decisions, and any instructions or preferences remain aligned with your current needs. If significant changes are needed, you may have to create a new LPA.

Successfully creating a lasting power of attorney gives you the comfort of knowing that, if you become unable to make decisions, those decisions will be made by someone who understands and respects your wishes. By following the official procedures and ensuring all forms are correctly completed, you reduce the risk of complications or delays at a time when clarity and efficiency are of utmost importance.

Costs and fees

The financial implications of setting up and maintaining a power of attorney can vary, but the costs are generally modest compared to the potential expenses that can arise if you lose capacity without proper arrangements in place. In England and Wales, the primary expense is the fee to register a lasting power of attorney (LPA) with the Office of the Public Guardian (OPG). Additional costs may include solicitor fees and fees related to any required medical assessments, but these are generally optional unless your case is particularly complex.

Below is a table outlining the main cost components you might encounter:

Registration fee

The most common fee associated with a power of attorney is the registration fee, which is paid to the OPG when you submit your LPA forms for registration. If you decide to create both a Property and Financial Affairs LPA and a Health and Welfare LPA, you will need to pay this fee twice. However, reductions and exemptions are available if you meet specific income thresholds or receive certain benefits.

Exemptions and reductions

Individuals on low incomes or receiving qualifying benefits (such as Universal Credit, Income Support, or Housing Benefit) may be eligible for a 50% reduction in the registration fee or a total exemption. You will need to provide evidence of your benefits or income when applying. This means that many people who worry about the cost may find that the fee is significantly reduced or waived altogether.

Legal advice and professional guidance

While it is possible to complete the LPA forms on your own using the guidance notes provided by the government, some people prefer to consult a solicitor or professional advisor. This can be particularly beneficial if you have complex financial affairs, own multiple properties, or wish to include specific instructions for health and welfare decisions. Solicitor fees vary widely, so it is worth obtaining quotes from multiple firms or seeking recommendations from friends and family.

Additional costs

In some circumstances, you might need a medical professional’s assessment of your capacity. This usually occurs if there is significant uncertainty or dispute about your ability to understand and consent to creating the LPA. Fees for these assessments vary depending on the healthcare professional’s rates. Typically, this is only necessary for complicated cases or where family members or professionals have raised concerns.

Ongoing costs

There are generally no ongoing fees once the LPA has been registered, unless you choose to update it or face legal disputes that require intervention by the Court of Protection or professional advisers. It is advisable, however, to review your LPA periodically, which might involve some minor costs if you decide to seek updated legal advice.

Overall, the cost of setting up and registering an LPA should be weighed against the potential challenges and expenses that can arise if you lose capacity without having a power of attorney in place. By taking a proactive approach and investigating any available fee reductions or exemptions, you can ensure this crucial legal safeguard remains affordable and accessible.

How to register a power of attorney

Registering a power of attorney (PoA) is the final step that brings the legal document into effect. In England and Wales, this process is overseen by the Office of the Public Guardian (OPG). While you can choose to register an LPA immediately after creation or wait until you need it (if you still have capacity), most legal advisors recommend registering sooner rather than later to avoid delays during critical situations.

1. Confirm the document is signed correctly

Before submitting your power of attorney for registration, ensure all signatures have been obtained in the correct order: the donor signs first, followed by the certificate provider, and finally the attorney(s). Each signature must be properly witnessed. Mistakes in the sequence of signatures or missing witness details are common reasons for registration delays.

2. Gather required paperwork

You will need:

• The original LPA document (or a certified copy).

• The completed application form for registration (LP2 in England and Wales).

• The registration fee for each LPA (unless you qualify for an exemption or reduction).

If you are applying for a fee reduction or exemption, gather evidence of your eligibility, such as proof of receiving certain benefits or documentation of your income.

3. Submit the application to the Office of the Public Guardian

Send your documents to the OPG by post, using the address indicated on the government website or within the application guidance notes. If you are registering multiple LPAs—such as Property and Financial Affairs and Health and Welfare—make sure to include separate fees or exemption/reduction proofs for each.

4. Notification of interested parties

When completing the LPA forms, you had the option to list ‘people to notify’ about the registration. These are individuals (not attorneys) who should be informed when you submit the registration. This step helps safeguard your interests because it gives these people an opportunity to raise concerns if they believe the LPA should not be registered. You must send them the relevant notice forms (LP3) so they are aware of your application.

5. OPG review and waiting period

Once the OPG receives your application, they will carry out checks to ensure the document is valid and meets all requirements. There is a mandatory waiting period of four weeks to allow for any objections from notified parties. If no objections are received and everything is in order, the OPG will proceed to register your LPA.

6. Possible outcomes

1. Successful registration: If your application is successful, you will receive an official stamped version of the LPA, confirming its registration. Keep this safe, as it is the legal document your attorney(s) will need to present to banks, healthcare providers, or other institutions when acting on your behalf.

2. Rejection or request for changes: If the OPG finds errors or omissions, they will either reject the application or request amendments. Common mistakes include incorrect signatures, incomplete sections, or failing to meet the witnessing requirements. You can typically rectify these by filling out additional paperwork or revising certain parts of the document. In some cases, you may have to apply for registration again.

3. Objections: If someone raises an objection—perhaps suggesting you were coerced or lacked capacity—you or your attorney may need to engage with the OPG or even the Court of Protection to resolve the dispute. This can delay or prevent registration until the matter is settled.

7. After registration

Once the LPA is registered, your attorney(s) can act under its authority. If it is a Health and Welfare LPA, they can only make decisions after you have been deemed to lack capacity for that specific decision. For a Property and Financial Affairs LPA, you can choose to allow your attorney(s) to act immediately, even if you still have capacity, if that is what you specified in the document.

Registering a power of attorney is a safeguard to ensure your legal wishes are respected should you become unable to make decisions in the future. By carefully following the registration process and seeking help if needed, you can avoid common pitfalls and secure the peace of mind that your affairs will be managed according to your instructions.

Rights and safeguards

When creating and using a power of attorney (PoA), various rights and safeguards exist to protect both the donor and the attorney(s). These measures are designed to ensure that decisions are made in the donor’s best interests, that no individual is forced into granting authority, and that attorneys are held accountable for their actions.

Right to make your own decisions (where possible)

Under the Mental Capacity Act 2005, there is a clear principle that every adult has the right to make their own decisions unless proven otherwise. Donors can continue to make their own choices as long as they have the capacity to do so. For a Property and Financial Affairs LPA, you may even allow your attorney to help you with financial matters while you still have capacity, providing the document is registered. However, you always have the option to handle your finances yourself if you prefer, unless you have explicitly restricted your own powers.

Right to be free from undue pressure

A vital safeguard is the requirement for a certificate provider. This impartial person must confirm that you fully understand the implications of the PoA and are not under pressure or coercion. If there are concerns about undue influence, the Office of the Public Guardian (OPG) or the Court of Protection can investigate. This helps ensure that the decision to grant a PoA is truly voluntary.

Attorney’s accountability

Attorneys are legally obliged to follow the principles set out in the relevant legislation. If an attorney acts outside the scope of their authority or against the donor’s best interests, they may face serious consequences, including removal by the Court of Protection or even criminal charges for fraud or abuse. Attorneys must keep accurate records, maintain a clear division between the donor’s finances and their own, and seek professional advice if they are uncertain about a significant decision.

Supervision by the Office of the Public Guardian

The OPG maintains a register of all LPAs in England and Wales. Anyone with a legitimate concern—such as a family member, friend, or professional—can contact the OPG if they believe an attorney is acting improperly. The OPG has investigative powers and can refer matters to the Court of Protection if they find evidence of wrongdoing or if the situation is complex.

Court of Protection interventions

If disagreements arise about a PoA—be it about how an attorney is managing finances or decisions around healthcare—the Court of Protection can step in. The court has wide-ranging powers, including suspending or cancelling an LPA, appointing a deputy to make decisions, or providing detailed rulings on specific disputes.

The donor’s right to revoke

As long as you (the donor) have the mental capacity to do so, you can revoke a PoA at any time. This means you can formally terminate your attorney’s authority if circumstances change or if you no longer trust your attorney. The revocation must be made in writing and shared with the attorney(s) and the OPG if the PoA has already been registered.

Additional layers of security

Some donors include specific instructions in their LPA that require attorneys to keep certain family members or professionals informed of decisions, especially major financial transactions. Others choose to appoint multiple attorneys to provide checks and balances. Although this can make decision-making more complex, it often enhances the safeguarding aspects of the arrangement.

These rights and safeguards exist to provide confidence that the PoA system is robust, fair, and focused on protecting individuals who may be vulnerable. By understanding and utilising these measures, donors can create a power of attorney that respects their autonomy while ensuring adequate protection if they lose capacity or require assistance in decision-making.

Addressing disputes or misuse

Even with rigorous safeguards in place, disputes or allegations of misuse can sometimes arise concerning a power of attorney (PoA). These disagreements may stem from family conflicts, differing opinions on the donor’s care, or concerns about financial irregularities. Recognising potential issues early and knowing the pathways to resolve disputes can help protect the donor’s interests and maintain trust in the arrangement.

Common sources of conflict

1. Financial disagreements: Family members might suspect an attorney of mismanaging the donor’s money or misusing funds for personal gain. Discrepancies in bank statements or unexplained purchases could trigger concerns.

2. Healthcare and welfare decisions: Tensions can arise if there is disagreement about the donor’s living arrangements, medical treatments, or daily care. Different family members may have varying opinions on what constitutes the donor’s best interests.

3. Lack of transparency: Attorneys who fail to keep adequate records or do not communicate decisions may create mistrust. Family members, particularly those not named as attorneys, might feel shut out of the decision-making process.

Steps to address concerns

1. Communication
In many cases, disputes can be resolved through open dialogue. The attorney should share their reasoning, records, and evidence of the donor’s wishes. Regular updates to close family or other relevant parties can prevent misunderstandings from escalating.

2. Mediation
When communication alone does not suffice, a neutral mediator can help. Mediation involves a trained professional who facilitates a structured discussion between the parties, aiming to reach a mutually acceptable resolution. It can be faster and less confrontational than formal legal action.

3. Reporting to the Office of the Public Guardian (OPG)
If there are serious concerns—such as suspected financial abuse or neglect—individuals can report the matter to the OPG. The OPG has the authority to investigate claims by requesting financial records, interviewing witnesses, and taking necessary steps to protect the donor’s assets and well-being.

4. Court of Protection involvement
Where disputes are complex or involve allegations of significant misconduct, the Court of Protection can intervene. The court can rule on specific issues, remove the attorney, or appoint a deputy if it finds that the attorney has not acted in the donor’s best interests. This is generally a last resort, as court proceedings can be lengthy and expensive.

Warning signs of misuse

• Unexplained withdrawals or purchases from the donor’s bank accounts.

• Sudden changes in the donor’s living conditions, such as unpaid bills, despite having sufficient funds.

• Isolated decision-making by the attorney without consulting the donor (where possible) or interested family members.

• Frequent conflicts of interest, e.g., the attorney benefiting financially at the donor’s expense.

Protective measures

To reduce the likelihood of disputes or misuse, donors can:

• Appoint multiple attorneys: This can provide checks and balances, although it can also slow decision-making if attorneys are required to agree jointly on every matter.

• Request regular reporting: Donors can require attorneys to share periodic financial statements with a trusted third party.

• Include clear instructions: Written preferences and instructions in the LPA can clarify the donor’s expectations and limit ambiguity.

Addressing disputes or misuse of a PoA promptly is essential to protect the donor’s well-being and finances. While most attorneys fulfil their role responsibly, it is reassuring to know that legal and administrative remedies are in place if problems do occur. By fostering open communication, using mediation where appropriate, and escalating concerns to the OPG or the Court of Protection when necessary, parties can resolve issues in a way that respects the donor’s rights and interests.

Changing or revoking a power of attorney

A power of attorney (PoA) arrangement is not necessarily a once-and-for-all document. Life circumstances change—attorneys may become unavailable, relationships can shift, or you may simply reconsider who is best suited to manage your affairs. As long as you (the donor) have the mental capacity to make decisions, you retain the right to modify or revoke your PoA.

Reasons for changing or revoking

1. Attorney no longer able to serve: Your chosen attorney may move abroad, experience health issues, or pass away. In such cases, you might need to appoint a replacement attorney or revoke the PoA and create a new one.

2. Change in relationships: If you no longer have a good relationship with your attorney or have concerns about their ability to act in your best interests, you may decide to select a more suitable individual.

3. Updated preferences: Over time, your priorities for healthcare, living arrangements, or financial management may shift. You might wish to clarify specific instructions that were not included in the original PoA.

4. Legal changes: Occasionally, changes in legislation or regulations might prompt you to update your PoA to ensure it remains compliant and effective.

How to make changes

1. Add or remove an attorney

In England and Wales, if you need to add an attorney or make significant changes—such as altering the scope of their authority—you will typically have to create a new PoA. Minor adjustments, like updating an attorney’s contact details, may be possible without drafting an entirely new document, but you should consult the guidance from the Office of the Public Guardian (OPG) or seek legal advice.

2. Add instructions or preferences

If the change is minor—such as clarifying a specific preference or adding a note for your attorney—it might be easier to provide an informal letter, which your attorney can keep alongside the PoA. However, such informal guidance does not have the same legal standing as a formally updated PoA. If you want legally binding instructions, you should include them in the official document.

How to revoke a PoA

Revoking a PoA is relatively straightforward if you retain mental capacity:

1. Write a formal statement of revocation: This should include your name, the date, and a clear declaration that you are revoking the PoA.

2. Notify all relevant parties: Inform your attorney(s) in writing that the PoA is revoked. If the PoA is registered with the OPG, you should also notify them in writing.

3. Destroy copies: To prevent confusion, any certified copies of the revoked PoA should be destroyed, and you should keep a record of the revocation in a safe place.

Once revoked, the attorney no longer has the legal authority to act on your behalf. If you still wish to have a PoA in place but with different terms or attorneys, you will need to create and register a new one.

Capacity considerations

You can only revoke or change a PoA if you have the mental capacity to do so. If there is any doubt about your capacity, you may need a medical assessment or a statement from a legal professional. If you lack capacity, only the Court of Protection can revoke or modify the PoA, typically in response to concerns about how the attorney is acting.

Impact on existing arrangements

If you revoke a PoA and do not create a new one, you lose the legal safety net provided by that document. This means that if you later lose capacity, there may be no one with the authority to act on your behalf without a lengthy application to the Court of Protection or an equivalent body in Scotland or Northern Ireland.

Changing or revoking a PoA is often a necessary step to ensure your legal arrangements accurately reflect your wishes and life circumstances. By taking timely action, seeking professional advice if needed, and following the proper procedures for notification and record-keeping, you can maintain control and protect your best interests.

Options if you do not have a power of attorney

While having a power of attorney (PoA) in place is widely regarded as the most straightforward way to protect your finances and personal welfare if you lose capacity, not everyone has taken this step. If you find yourself or a loved one without a PoA during a period of incapacity, it can create legal and practical complications. Understanding the available alternatives is essential for navigating these challenges.

Court of Protection (England and Wales)

If an individual in England or Wales loses capacity without a valid PoA, family members or close friends can apply to the Court of Protection to be appointed as a deputy. A deputy has similar authority to an attorney but must report regularly to the court and may be subject to more stringent oversight, including the purchase of a security bond to safeguard the person’s finances.

Types of deputies

• Property and Financial Affairs Deputy: Manages the individual’s money, bills, and other assets.

• Personal Welfare Deputy: Makes decisions about medical treatment and living arrangements, though these appointments are less common as courts prefer minimal interference in personal healthcare matters.

Deputyship applications can be time-consuming and more expensive than setting up a PoA. Court fees, legal costs, and annual supervision fees can quickly accumulate.

Guardianship in Scotland

In Scotland, if an adult loses capacity and has not granted a PoA, relatives can apply for guardianship through the local sheriff court. Guardianships can cover financial matters, personal welfare, or both, and are subject to ongoing supervision by the Office of the Public Guardian (Scotland) or local authorities. Like deputyship in England and Wales, this process can be intricate and may require legal input, medical reports, and court appearances.

Controllership in Northern Ireland

Northern Ireland has a similar mechanism to deputyship known as controllership, overseen by the Office of Care and Protection. Relatives or friends can apply to become a controller to handle financial affairs for someone who lacks capacity. More complex welfare matters might require separate legal processes.

Social services involvement

If no family member or friend is able or willing to become a deputy, guardian, or controller, local authorities or social services may step in. They can make decisions about care arrangements, but there can be limits to their authority over financial matters. In such cases, an application through the relevant court remains the most appropriate route to formalise decision-making powers.

Impact on healthcare decisions

Without a PoA for health and welfare, healthcare professionals will usually consult the individual’s close family members or follow existing legal frameworks to make decisions in the patient’s best interests. However, this can sometimes lead to disagreements among relatives or uncertainty about the patient’s true wishes.

Emergency procedures

In urgent or life-threatening situations, healthcare providers and social services may act in the best interests of the individual without formal legal authority. Such interventions are typically limited to immediate care decisions. Long-term or more complex issues (e.g., selling property to pay for care) usually require formal legal authority.

Why forward planning helps

Relying on court-appointed methods like deputyship or guardianship is often more expensive and complicated than preparing a PoA in advance. Additionally, the donor’s input and preferences may not be as thoroughly documented, which can lead to greater uncertainty. Whenever possible, creating a PoA while an individual has capacity is the recommended approach to ensure smoother decision-making in the future.

If you or someone close to you does not have a PoA in place and loses capacity, exploring the options provided by the courts and local authorities is the next best step. While these legal routes do provide a safety net, they can be more demanding and offer less flexibility than a carefully planned PoA.

Conclusion

A power of attorney (PoA) is a crucial legal tool that grants someone the authority to make decisions on your behalf, covering areas such as finance, property, and personal welfare. In the UK, the most popular form of PoA is the lasting power of attorney (LPA), which remains valid even if you lose the capacity to make your own decisions. Establishing a PoA can bring immense peace of mind, ensuring that, if you are ever unable to manage your affairs, your chosen attorney can step in promptly and in accordance with your wishes.

The process involves several key steps: determining the type of PoA you require (such as Property and Financial Affairs or Health and Welfare), choosing a suitable attorney or attorneys, completing the official documentation, and registering it with the relevant authority—typically the Office of the Public Guardian (OPG) in England and Wales. Similar but distinct processes apply in Scotland and Northern Ireland, with their own regulatory bodies overseeing the registration and management of PoAs.

Underlying each PoA is the fundamental notion of mental capacity. The Mental Capacity Act 2005 sets out guiding principles and best interests assessments, ensuring that individuals are not deprived of their decision-making authority unless it is truly necessary. If you have capacity at the time of creating a PoA, you retain the freedom to make your own decisions for as long as possible, and the PoA only becomes active when you require additional support—or, in the case of a Health and Welfare LPA, when you no longer have capacity to make certain decisions.

Safeguards exist to protect both donors and attorneys. These include the role of the certificate provider, OPG supervision, and the ability to report any concerns about misuse or dispute to the Court of Protection. Additionally, you have the right to change or revoke a PoA as long as you have the capacity to do so. This flexibility ensures that your legal documents remain an accurate reflection of your changing circumstances and relationships.

If you choose not to create a PoA, or if you lose capacity without one in place, there are alternative legal pathways such as deputyship (in England and Wales), guardianship (in Scotland), or controllership (in Northern Ireland). However, these processes can be more complicated, time-consuming, and expensive, placing additional burdens on your loved ones at an already stressful time.

By taking the initiative to set up a power of attorney, you can spare your family from difficult legal hurdles and ensure that decisions about your life and finances rest with someone you trust. Although it is a serious undertaking, a PoA ultimately provides reassurance that, should the unexpected happen, you have laid the groundwork for your own protection and wellbeing.

Frequently asked questions

General overview

What is a power of attorney?

A power of attorney is a legal document that allows you (the donor) to grant someone else (the attorney) the authority to make decisions on your behalf. These decisions might relate to finances, property, or personal welfare, depending on the type of power of attorney you choose.

Who can create a power of attorney?

Anyone aged 18 or over with the mental capacity to understand what they are doing can create a power of attorney. You do not need to have any specific health issues; many people set one up as a safeguard for the future.

Is there more than one type of power of attorney?

Yes. In England and Wales, the main forms are the lasting power of attorney (LPA) covering property and financial affairs, and the LPA for health and welfare. Older enduring powers of attorney (EPA) can still be valid if made before 1 October 2007.

Setting it up

How do I start creating a power of attorney?

You begin by deciding which type of power of attorney you need—property and financial affairs, health and welfare, or both. You then complete the appropriate forms, which are available from the UK Government’s website or through a solicitor, and have them signed, witnessed, and certified correctly.

Why do I need a certificate provider?

A certificate provider confirms that you understand the purpose of the power of attorney and that no one is pressuring you to create it. This person can be a professional (such as a doctor or solicitor) or someone who has known you well for at least two years, but they must not be an appointed attorney or a close relative.

Do I have to register my power of attorney right away?

Most people do register their power of attorney immediately to avoid future delays. However, technically you can create one and register it later. Keep in mind that an unregistered LPA cannot be used if you suddenly lose mental capacity.

Choosing attorneys

Who should I appoint as my attorney?

You should choose someone you trust implicitly, who has the skills to manage your affairs and the willingness to accept the responsibility. They can be a family member, friend, or a professional like a solicitor or accountant.

Can I appoint more than one attorney?

Yes, you can appoint multiple attorneys to act together (jointly), separately (jointly and severally), or a mix of both for different tasks. Having more than one attorney can provide checks and balances, but it can also complicate decision-making if all attorneys must agree on every issue.

What if my attorney can no longer act for me?

You can name one or more ‘replacement attorneys’ in your power of attorney document who can step in if your original attorney can no longer serve. If you do not have a replacement attorney named and your sole attorney becomes unavailable, your power of attorney may no longer be valid.

Costs & fees

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

The main expense is the registration fee with the Office of the Public Guardian (OPG), which is currently £82 per lasting power of attorney in England and Wales. If you create both a property and financial affairs LPA and a health and welfare LPA, you pay the fee for each. Legal fees may also apply if you use a solicitor.

Are fee reductions or exemptions available?

Yes. If you receive certain benefits or are on a low income, you could be eligible for a 50% fee reduction or an exemption. You will need to provide evidence, such as copies of benefit entitlement letters, when submitting your forms.

Using a power of attorney

When can my attorney begin making decisions for me?

For a property and financial affairs LPA, you can choose whether your attorney can act as soon as it is registered or only when you lack capacity. A health and welfare LPA can only be used once you have lost capacity to make relevant decisions.

Do I lose all control once a power of attorney is set up?

No, you retain the right to manage your affairs and make your own decisions for as long as you have the mental capacity to do so. The attorney’s authority becomes relevant only if, and when, you are unable to make certain decisions yourself (or immediately, if you opted for that arrangement in a financial LPA).

Managing finances

Can my attorney access my bank accounts without telling me?

If you have authorised your attorney to manage your financial affairs, they can indeed access your accounts. However, they should keep you informed of significant transactions if you still have capacity, unless you have given them specific instructions to the contrary. They must also keep accurate records of all financial dealings.

Are there limits to what financial decisions an attorney can make?

Attorneys generally have wide-ranging authority for financial matters, but they must always act in your best interests and follow any restrictions written into the LPA. They cannot, for example, make a will on your behalf or change your existing will.

Health & welfare decisions

Can my attorney decide where I live?

A health and welfare attorney can make decisions about your living arrangements if you lose the capacity to decide for yourself. This includes whether you move into a care home or remain at home with support. They must consider your preferences and best interests.

Can my attorney refuse medical treatment on my behalf?

Health and welfare attorneys can make decisions about medical treatment if that authority is granted in the LPA. However, refusing life-sustaining treatment often requires a specific statement in the LPA. If the LPA does not cover this aspect, doctors and healthcare professionals usually follow the best interests principle under medical guidelines.

Safeguards & disputes

What happens if my attorney misuses my money?

If you suspect misuse, you or concerned parties can report the issue to the Office of the Public Guardian. The OPG has powers to investigate allegations of financial abuse and can refer cases to the Court of Protection, which may remove the attorney or order them to repay any misused funds.

How are disputes between family members resolved?

Minor disagreements can often be settled through open communication or mediation. For more serious or complex disputes—especially those alleging abuse or mismanagement—the Court of Protection can intervene to make decisions or remove attorneys if necessary.

Changing or revoking

Can I change the details of my LPA once it’s registered?

You cannot amend a registered LPA itself. If you want to make substantial changes, you must revoke the existing LPA (while you still have capacity) and create a new one. Minor changes like updated contact details can sometimes be managed without revoking the entire document, but seek guidance if in doubt.

How do I cancel my power of attorney?

If you have capacity, you can revoke your LPA by writing a formal statement of revocation. You must inform your attorney(s) and the Office of the Public Guardian (if the LPA is registered). Any certified copies should be destroyed to avoid confusion.

Alternatives to power of attorney

What if I don’t have a power of attorney and lose capacity?

If you do not have a power of attorney, someone may need to apply to the Court of Protection for a deputyship order. This process can be more costly and time-consuming, and you have less control over who is appointed to manage your affairs.

Can I just rely on a joint bank account?

While a joint bank account can allow someone to access funds, it does not grant authority over your wider financial or welfare matters. Nor does it allow for long-term management if you lose capacity. A lasting power of attorney offers more comprehensive and legally recognised protections.

Additional considerations

Can I use a power of attorney created in one part of the UK if I move to another?

Most LPAs are intended for use in the jurisdiction where they were registered. If you move permanently between England, Wales, Scotland, or Northern Ireland, you should review whether you need a new document. Similar processes exist, but each has its own legal variations.

Do I need separate attorneys for health and finances?

Not necessarily. You can appoint the same individual to handle both, provided they are willing and capable. Alternatively, you could appoint different people for each area, depending on their expertise and your personal preferences.

Who monitors attorneys to ensure they act properly?

The Office of the Public Guardian supervises attorneys in England and Wales. It can investigate complaints of misconduct and apply to the Court of Protection if serious action is necessary. Individuals and professionals also have a duty to report any concerns about potential abuse or mismanagement.

Last notes for peace of mind

Will my attorney know how to handle complex decisions?

Attorneys are encouraged to seek professional advice if they encounter complex financial or medical matters. This could involve consulting with financial advisors, healthcare professionals, or solicitors. Their primary obligation remains to act in your best interests at all times.

Still have questions?

If you are unsure about any aspects of setting up or managing a power of attorney, it may be helpful to have a one-on-one discussion with a professional. Whether you are a donor looking to create a new power of attorney or an attorney seeking clarity about your responsibilities, speaking directly with an expert can give you personalised guidance. They can address specific concerns, provide tailored advice on your circumstances, and ensure that all legal requirements are met. If you still have questions, consider getting in touch with an expert to talk through your situation and find a clear path forward.

Glossary

Accountability

Accountability refers to the obligation of an attorney to justify and explain their decisions and actions under a power of attorney. They must keep accurate records, follow the donor’s instructions, and act in the donor’s best interests at all times.

Advance decision

Also known as a living will, an advance decision is a document that outlines specific medical treatments you would like to refuse if, in the future, you lack capacity to make or communicate those choices. While separate from a power of attorney, it can work alongside a health and welfare LPA to express healthcare wishes.

Advocate

An advocate is a person (sometimes professionally trained) who supports and represents someone else’s interests, particularly when they have difficulty expressing their own views. Advocates can be involved in situations where the donor’s capacity or ability to communicate is limited, ensuring their wishes are heard.

Attorney

An attorney is the individual given legal authority to act on behalf of the donor under a power of attorney. The attorney can be a family member, friend, or professional, such as a solicitor or accountant, and must act according to the donor’s best interests and instructions.

Best interests

Best interests is a principle from the Mental Capacity Act 2005 requiring that any decision made on behalf of a person who lacks capacity must reflect that person’s welfare, values, and preferences as closely as possible.

Capacity

Capacity is the ability to understand, remember, and weigh up relevant information to make a decision, and to communicate that decision in some way. Capacity can vary over time and from one decision to another, and must be assessed in relation to the specific decision at hand.

Certificate provider

A certificate provider is a neutral individual who confirms that the donor understands the power of attorney document they are signing and that no one is pressuring them into creating it. This role helps protect the donor from undue influence or coercion.

Code of practice

The code of practice refers to official guidance accompanying legislation such as the Mental Capacity Act 2005. It offers detailed instructions on how attorneys, healthcare professionals, and others should act when supporting or making decisions for someone who may lack capacity.

Confidentiality

Confidentiality means that any information attorneys receive about the donor (financial, medical, or otherwise) must be kept private unless it is necessary to share it for the donor’s benefit or for legal reasons. Breaches of confidentiality can lead to investigations by regulatory bodies.

Conflict of interest

A conflict of interest arises when an attorney’s personal or financial interests compete with their duty to act in the donor’s best interests. Attorneys are required to avoid such conflicts or to seek legal guidance where conflicts cannot be avoided.

Controllership

Controllership is the Northern Ireland equivalent of deputyship, where the Office of Care and Protection appoints an individual (the controller) to manage the financial affairs of someone who lacks capacity and does not have a valid power of attorney in place.

Court of Protection

The Court of Protection is a specialist court in England and Wales that deals with matters relating to people who lack capacity to make certain decisions. It can remove attorneys, make urgent decisions on behalf of donors, and resolve disputes over the use or scope of powers of attorney.

Deputy

A deputy is a person appointed by the Court of Protection to make decisions on behalf of someone who lacks capacity and has no valid power of attorney. Deputies must comply with court-imposed restrictions and report regularly on their decisions.

Digital LPA

Digital LPA refers to newer online systems that allow users to create and manage aspects of a lasting power of attorney application electronically, streamlining some of the paperwork involved. While more convenient for some, you must still follow official protocols for witnessing and registration.

Donor

The donor is the person who creates a power of attorney, granting authority to an attorney to act on their behalf. The donor must have mental capacity at the time of making the legal document.

Duties

Duties are the obligations an attorney must fulfil, including acting in the donor’s best interests, keeping the donor’s finances separate from their own, and maintaining accurate records of all decisions and transactions.

Enduring power of attorney

An enduring power of attorney (EPA) is an older form of power of attorney covering property and financial affairs. EPAs can no longer be created in England and Wales since 1 October 2007, but valid ones made before that date remain legally recognised.

Exemption

Exemption refers to a waiver of the registration fee for a lasting power of attorney if the donor meets certain criteria, such as being in receipt of certain benefits. In other cases, donors might qualify for a reduced fee rather than a full exemption.

Financial abuse

Financial abuse is the misuse of money, property, or other financial assets, often by someone in a trusted position like an attorney. Allegations of financial abuse can be investigated by the Office of the Public Guardian or referred to the Court of Protection.

Guardianship

Guardianship is the Scottish legal framework allowing a court to appoint someone (a guardian) to make decisions for an adult who lacks capacity and has no valid power of attorney. Guardianship can cover financial, welfare, or combined powers.

Health and welfare LPA

A health and welfare LPA is a type of lasting power of attorney that covers decisions about medical treatment, living arrangements, and personal care. It only takes effect once the donor loses capacity to make such decisions themselves.

Joint attorneys

Joint attorneys are two or more attorneys appointed to act together. If they must act jointly, they must all agree on every decision. If they are appointed jointly and severally, any one of them can act independently, though they may still consult each other on major decisions.

Lasting power of attorney

A lasting power of attorney (LPA) is a legal document in England and Wales allowing someone (the donor) to appoint an attorney to make decisions about their property and financial affairs or health and welfare should they lose capacity.

Law Society

The Law Society is a professional association that represents solicitors in England and Wales, providing guidance on best practices for legal matters including setting up and registering powers of attorney.

Mediation

Mediation is a process where a neutral third party helps people in dispute—such as family members or attorneys—reach a mutually acceptable resolution without going to court. It can be used when disagreements arise over power of attorney matters.

Mental Capacity Act

The Mental Capacity Act 2005 is legislation in England and Wales that provides the legal framework for making decisions on behalf of adults who may lack capacity. It underpins how powers of attorney and deputies should act.

Misuse

Misuse in the context of a power of attorney refers to any behaviour by an attorney that falls outside the donor’s best interests, such as unauthorised spending or neglect of the donor’s welfare. Serious misuse may lead to an OPG investigation or Court of Protection intervention.

Office of Care and Protection

The Office of Care and Protection is a body in Northern Ireland responsible for appointing controllers, overseeing controllership cases, and resolving certain disputes when someone lacks capacity and does not have a power of attorney.

Office of the Public Guardian

The Office of the Public Guardian (OPG) is the government body in England and Wales responsible for registering LPAs, maintaining a public register of them, and investigating any concerns about an attorney’s conduct.

OPG supervision

OPG supervision refers to the Office of the Public Guardian’s ongoing oversight of deputies or attorneys, ensuring they continue to fulfil their legal duties responsibly and act in the best interests of the donor.

Power of attorney

A power of attorney (PoA) is a legal arrangement that lets one person (the donor) give another person (the attorney) the authority to make decisions on their behalf. In the UK, this includes lasting powers of attorney for property and financial affairs or health and welfare.

Preferences

Preferences are non-binding statements in a power of attorney document that guide attorneys on how the donor would like decisions to be made. While attorneys should take preferences into account, they are not obliged to follow them if doing so is not in the donor’s best interests.

Property and financial affairs LPA

A property and financial affairs LPA authorises an attorney to manage financial matters on behalf of the donor, such as paying bills, collecting benefits, or handling property transactions. It can be used as soon as it is registered if the donor chooses, or only when the donor no longer has capacity.

Protective measures

Protective measures are steps taken to ensure the donor’s safety and wellbeing, such as appointing multiple attorneys for checks and balances, adding specific instructions in the LPA, or requiring attorneys to provide periodic financial statements to a third party.

Registration

Registration is the process of submitting the completed LPA documents to the Office of the Public Guardian (OPG). An LPA must be officially registered before an attorney can use it, which can take several weeks or months.

Replacement attorney

A replacement attorney is an individual named by the donor to step in if the originally appointed attorney can no longer fulfil their role, for example due to illness, death, or a change in personal circumstances.

Revocation

Revocation occurs when a donor who still has capacity cancels an existing power of attorney. To revoke an LPA, the donor must provide written notice of their decision and inform the Office of the Public Guardian if the LPA has been registered.

Safeguarding

Safeguarding refers to the policies and actions taken to protect vulnerable adults from harm or abuse. In the context of powers of attorney, safeguarding involves monitoring the attorney’s actions, investigating allegations of misconduct, and intervening when necessary.

Scottish continuing power of attorney

A Scottish continuing power of attorney is a legal document under Scottish law that deals mainly with financial and property matters. It can come into effect immediately upon registration or when the donor loses capacity, depending on how it is drafted.

Scottish welfare power of attorney

A Scottish welfare power of attorney covers decisions about personal welfare and healthcare in Scotland. It only applies once the donor is deemed to lack the capacity to make such decisions for themselves.

Useful organisations

Office of the Public Guardian (England and Wales)

The Office of the Public Guardian (OPG) is the government body responsible for registering lasting powers of attorney, maintaining a public register of them, and investigating any concerns about an attorney’s conduct. They also supervise deputies appointed by the Court of Protection.

• Phone: 0300 456 0300

• Website: www.gov.uk/opg

Citizens Advice

Citizens Advice is a UK-wide charity offering free, independent, and confidential advice to help people resolve legal, financial, and other problems. Their advisers can provide information on creating or managing a power of attorney, alongside general consumer and benefits guidance.

• Phone: 0800 144 8848

• Website: www.citizensadvice.org.uk

Age UK

Age UK is a leading charity dedicated to helping older people with information, support, and advice on a range of topics. They offer resources on legal matters like powers of attorney, wills, and later-life planning, aiming to protect the rights and wellbeing of older adults.

• Phone: 0800 678 1602

• Website: www.ageuk.org.uk

Law Society

The Law Society represents solicitors in England and Wales. It can help you find a qualified solicitor with expertise in power of attorney matters, ensuring you get professional legal advice tailored to your needs.

• Phone: 020 7242 1222

• Website: www.lawsociety.org.uk

National Family Mediation

National Family Mediation provides specialist mediation services aimed at resolving family disputes. This can include disagreements around power of attorney, enabling families to reach mutually acceptable solutions without going to court.

• Phone: 0300 4000 636

• Website: www.nfm.org.uk

All references

Age UK (2020) Power of attorney factsheet. London: Age UK. https://www.ageuk.org.uk/globalassets/age-uk/documents/factsheets/fs22_power_of_attorney_fcs.pdf; Citizens Advice (2021) Planning ahead for the future. London: Citizens Advice. https://www.citizensadvice.org.uk/family/looking-after-people/managing-affairs-for-someone-else/powers-of-attorney/; Citizens Advice (2022) Financial guidance report. London: Citizens Advice. https://www.citizensadvice.org.uk/debt-and-money/; Gov.uk (2019) Make, register or end a lasting power of attorney: Guidance notes. London: Gov.uk. https://www.gov.uk/power-of-attorney; Gov.uk (2020) How to make an LPA: Step by step. London: Gov.uk. https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney; Law Society (2021) Professional advice on wills and LPAs. London: Law Society. https://www.lawsociety.org.uk/topics/private-client; Mental Capacity Act 2005 Code of Practice (2007) London: The Stationery Office. https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice; National Family Mediation (2020) Mediation services brochure. London: NFM. https://www.nfm.org.uk/family-mediation/; Office of the Public Guardian (2020) LPA: Notification of registration. London: OPG. https://www.gov.uk/government/organisations/office-of-the-public-guardian; Office of the Public Guardian (2021) Safeguarding guidance for attorneys. London: OPG. https://www.gov.uk/government/organisations/office-of-the-public-guardian; Office of the Public Guardian (2022) Annual Report. London: OPG. https://www.gov.uk/government/organisations/office-of-the-public-guardian.

Disclaimer

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