Power of Attorney in England and Wales

What is Power of Attorney in England and Wales?

Power of Attorney is a legal document that enables one or more people to act on someone’s behalf if they are unable to make decisions or no longer want to (depending upon how the document is drafted and the type of power of attorney used). In England and Wales, Lasting, Enduring and Ordinary Power of Attorney are available.

The appointed person is called the ‘attorney’ while the person giving someone Power of Attorney is known as the ‘donor’.

Setting up a Power of Attorney can allow you to make decisions regarding health and welfare, finances and property.

For example, if your parent is living with dementia, appropriate powers of attorney could grant you the authority to put them in a care home and sell their property.

An attorney must act in the donor’s best interests, consider their needs and wishes and keep accounts of any activity.

The person giving Power of Attorney must have the mental capacity to do so. A Power of Attorney needs to be registered before it comes into effect.

If you are looking for information about how to make a Power of Attorney in Scotland or Northern Ireland, follow the links below.

Power of Attorney in Scotland

Power of Attorney in Northern Ireland

What does mental capacity mean?

While a person maintains mental capacity, nobody may make decisions for them without their consent. The Mental Capacity Act 2005 (MCA) states a person lacks the mental capacity to make decisions if they cannot:

• Understand the information relevant to the decision
• Retain that information
• Use or weigh that information as part of the process of making the decision
• Communicate their decision (whether by talking, using sign language or any other means)

People who may lack mental capacity could be (although this list is not exhaustive):

• People living with dementia
• A person with brain injuries
• Someone who has suffered mental and physical deterioration due to old age or other factors
• People with mental health problems or physical disabilities

Just because a person is living with these conditions, it does not automatically mean they cannot make decisions for themselves. Before an attorney makes a decision for the donor, they must first assist the donor to make the decision themselves if at all possible.

A person should be assumed to have the capacity to make their own decisions unless proven otherwise and that if decisions are made on their behalf, they must be made in the person’s best interest.

Types of Power of Attorney and what they allow you to do

In England and Wales, there are several types of Power of Attorney. The three most used types being Lasting Power of Attorney (LPA), Ordinary Power of Attorney (OPA) and Enduring Power of Attorney (EPA). The donor must be 18 or over and have the mental capacity to understand the decision they are making and the nature of the power they are granting to the attorney, when they make the Power of Attorney.

Lasting Power of Attorney (LPA)

An LPA lets a person make decisions on someone’s behalf about either their health and welfare or financial affairs and property, or both (if both types are created), if they lose their mental capability.

It is a sensible precaution to consider putting one or more LPAs in place to protect you in the future, should they be needed.

Health and Welfare LPA

The Health and Welfare LPA gives the attorney the authority to make decisions regarding the donor’s personal welfare. This includes but is not limited to:

• Medical care
• When the donor should move into a care home
• Contact with other people
• Giving or refusing consent to life-saving medical treatment

A Health and Welfare LPA only comes into effect if the donor loses the mental capacity to make their own decisions.

Property and Financial Affairs LPA

This LPA is used to give the attorney power to make financial and property-related decisions on the donor’s behalf. This includes but is not limited to:

• Managing financial accounts and debts
• Collecting benefits and pension
• Paying bills and mortgage
• Buying, renting and selling property

The donor can specify restrictions on what the attorney can or cannot do. The attorney must keep accurate accounts of money spent and keep the donor’s money separate from their own.

For additional protection, it is advisable these records are sent to a solicitor or family member if the donor loses mental capacity.

With the donor’s permission, the Property and Financial Affairs LPA can be used immediately as it is registered. The LPA must give the attorney powers to make decisions if the donor loses their mental capacity.

Ordinary Power of Attorney (OPA)

An ordinary Power of Attorney covers financial decisions and can only be used while the donor has the mental capacity to make their own decisions. An ordinary power can be used when, for example, a person goes on holiday, struggles to get out of the house, or goes into respite care and needs help managing their affairs.

The donor can restrict the OPA to only cover certain financial decisions or all of them.

Enduring Power of Attorney (EPA)

LPAs replaced EPAs in October 2007, but if the EPA was made before this date it should be valid if correctly drafted and executed. An EPA only covers money and property affairs, not health and welfare.

An attorney cannot continue to use an EPA (except in very limited ways) once the donor has lost mental capacity.

The attorney must register the EPA with the Office of the Public Guardian if they wish to continue using it once the donor has lost capacity or the attorney believes they are beginning to lose capacity.

When is the right time to make a Power of Attorney?

Anyone over the age of 18 who has the capacity to do so can make a Power of Attorney and it is advisable to put one in place sooner rather than later, in case you lose your mental capacity at a later stage.

Sara McGrigor, senior associate at law firm DMH Stallard advises that a Power of Attorney should be treated as an insurance policy.

“Arguably there is no wrong time to put an LPA in place, any person over 18 should have them. Having said that, in practice, people tend to wait until they are in their mid to late 50s. In my opinion they should be thought of as akin to an insurance policy.

Office of the Public Guardian

“An LPA cannot be used until it is registered with the Office of the Public Guardian, I always strongly suggest that this is done at the outset so that, if needed, the LPA (s) can be used without the delay of the registration process.

“If someone does not have a financial LPA in place then once they lose capacity it will be very difficult to manage their finances and there will be a delay (and potential financial issues such as late payment of bills/debts accruing) whilst an application is made for a deputy to be appointed by the Court. In addition, the deputy will not necessarily be the same person that the person would have chosen had they made an LPA. Applications for health and welfare deputies are more rare and even more rarely successful.”

Do I need a solicitor to make a Power of Attorney?

You can fill out the forms for Power of Attorney yourself but if you get professional advice from a solicitor or local Citizens Advice, they can help you choose who would be best to take on the role of Power of Attorney, how to structure the document and what powers the different LPAs have.

The person giving the Power of Attorney must have mental capacity to make an LPA. The two LPAs, health and welfare and property and financial affairs, have different forms and if you want someone to look after both your finances and your health, you will need to make two separate LPAs.

You can make an LPA either online on the government website or download the forms and fill them out yourself to send to the Office of the Public Guardian for registration.

The forms must be signed by the donor, the attorney(s), witnesses as well as a certificate provider, who ensures the donor understands what they are doing. Witnesses and the certificate provider must be aged 18 or over.

How much does it cost to get Power of Attorney in the UK?

There is a separate cost for submitting an application for each LPA, meaning you will have to pay £164 for both property and financial affairs and health and welfare LPAs (i.e. £82 per document). Depending on your income and if you receive certain benefits, you may receive a 50 per cent discount or be exempt from paying.

If a person loses their mental capacity and doesn’t have a Power of Attorney put in place, an application to the Court of Protection must be made. Spouses/Civil Partners are not granted power of attorney automatically.

The Court of Protection makes financial and welfare decisions for people who lack mental capacity to do so. They are also responsible for appointing deputies to make ongoing decisions for people who are unable to make their own.

How much does a solicitor charge for Power of Attorney?

Getting advice from a solicitor on Power of Attorney will obviously cost you extra on top of the application fees. You should get a quote before you start the process. The cost of engaging a solicitor can be from £300 upwards.