Powers of attorney

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Power of attorney

There are a number of reasons why you might need someone to make decisions for you or act on your behalf.

It could just be temporary: for example, if you are in hospital and need help with everyday things such as making sure that bills are paid. Or you may need to make more long-term plans if, for example, you have been diagnosed with dementia.

There are two types of power of attorney: ordinary and lasting.

 

  1. Ordinary power of attorney - If you want to give someone full access to make decisions and take action concerning your finances while you still have mental capacity, you can set up an ordinary power of attorney. This is a legal document giving someone else authority to act on your behalf. It is only valid while you still have mental capacity to make your own decisions about your finances, so that you can keep an eye on what the person making decisions for you (your attorney) is doing.
  2.  

  3. Lasting power of attorney

A lasting power of attorney (LPA) is a way of giving someone you trust the legal authority to make decisions on your behalf if you lack mental capacity at some time in the future, or no longer wish to make decisions for yourself.

See below for further information on what it meant by ‘mental capacity’.

There are two types of LPA:

  • property and financial affairs
  • personal welfare.

Property and financial affairs - This can be used while someone still has mental capacity. An attorney (the person who makes decisions for you) can generally make decisions on things such as: buying and selling property; investing money; paying bills; or arranging repairs to property.

Personal welfare - This covers decisions about healthcare as well as personal welfare and can only be used once a person has lost mental capacity. An attorney can generally make decisions about things such as: where you should live; your medical care; who you should have contact with; and what kind of social activities you should take part in.

You can restrict or specify the types of decisions your attorney can make or you can allow them to make all decisions on your behalf.

If you’re setting up a property and financial affairs LPA, your attorney must keep accounts and make sure their money is kept separate from your money.

Lasting powers of attorney were introduced in October 2007, replacing the old system of enduring power of attorney (EPA). An EPA created before October 2007 remains valid.

Our following publications explain about ordinary powers of attorney and LPAs in more detail. Our factsheet, in particular, explains how to set up an LPA, when it will be valid, things to think about when choosing who to appoint as an attorney, what responsibilities the attorney has, what might happen if you don’t create an LPA; and what to do if there are any concerns in regard to how someone might be using an LPA.

opens link in new window  FS22: Arranging for someone to make decisions about your finance or welfare (PDF 638KB)

opens link in new window  IG21: Powers of attorney (PDF 796KB)

 

Mental capacity

Having mental capacity means a person is able to make their own decisions. If you’re unable to make your own decisions at some point in the future – such as if you have advanced dementia or are unconscious – someone else will need to do so for you. 

Some people may have capacity to make decisions about some things but not others, or their capacity to make decisions may change from day to day.

The Mental Capacity Act sets out the legal test to decide whether someone lacks the mental capacity to make a particular decision or express their views. This includes the inability of a person to:

  • understand information given to them
  • retain that information long enough to make a decision
  • weigh up information to make a decision
  • communicate their decision – via all possible means.

It also establishes the following principles about mental capacity:

  • a presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
  • the right to be supported to make their own decisions – all practicable steps must be taken to help a person make their own decision before anyone concludes that they are unable to do so
  • the right to make eccentric or unwise decisions – a person is not to be treated as being unable to make a decision simply because the decision they make is seen as unwise
  • 'best interests' – any decision made or action taken on behalf of people without capacity must be made in their best interests
  • least restrictive intervention – anyone making a decision for or on behalf of a person without capacity should consider all effective alternatives and choose the one that is the least restrictive of the person’s basic rights and freedoms.

Further information on the Mental Capacity Act can be found on the GOV.UK website.

Advice line:
08000 223 444
 

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