What is Power of attorney?

A power of attorney is a way of giving someone you trust the legal authority to make decisions on your behalf if you're no longer able to make them yourself, or if you don't want to. 

There might come a time when you're no longer able to make or communicate your own decisions. Having a power of attorney set up in advance can make things much easier. 

A power of attorney is a legal document that appoints someone – your 'attorney' – to make decisions on your behalf. 

There are several reasons why you may need someone to make decisions on your behalf. It may be a temporary measure, if you're going into hospital and need help with everyday financial tasks like paying your bills. Or it may be part of long-term planning if, for example, you've been diagnosed with dementia and want to plan in case you lose mental capacity to make your own decisions in the future.  

There are 3 types of power of attorney: 

• lasting power of attorney 

• enduring power of attorney 

• ordinary power of attorney.  

This article will focus on lasting power of attorney, which are the relevant option for most people. 

What is lasting power of attorney (LPA)? 

• There are two types of LPA: one for making financial decisions and another for making health and care decisions. You can set up LPAs for both types of decisions.  

• An LPA for health and care decisions can only be used if you lose mental capacity. An LPA for financial decisions can also be used, with your permission, while you still have mental capacity (but you need to choose this option when setting it up.) 

• You can only create an LPA if you have mental capacity to do so and you haven’t been put under any pressure to set it up.  

• An LPA isn’t necessarily permanent. You can cancel it at any time while you have mental capacity by sending the original LPA document and a 'deed of revocation' to the Office of the Public Guardian 

LPA for property and financial affairs decisions  

If you create this type of LPA, your attorney can make decisions about things like:  

• selling your home  

• paying your mortgage and bills  

• arranging repairs to your home. 

Key facts:   

• This type of LPA gives your attorney the authority to make all decisions about your finances and property, unless you limit their authority by including specific instructions when setting it up.   

• Your attorney usually must keep your money separate from theirs and keep accounts to show this.  

• You can ask for regular updates on how much money you have and how much has been spent. If you’d like, these updates can also be sent to your solicitor or a family member. 

LPA for health and care decisions  

If you create this type of LPA, your attorney can make decisions about things like:  

• where you live  

• your medical treatment  

• the care and support you receive  

• who you have contact with  

• what kind of social activities you take part in. 

Key facts:  

• Unlike an LPA for financial decisions, your attorney can only use this LPA if you no longer have mental capacity.  

• When setting up the LPA, you must decide whether to give your attorney the authority to make decisions about life-saving treatment.  

• If you lose mental capacity and don’t have this type of LPA in place, any decisions about your health or care will be made by the professionals relevant to your situation, such as your doctor or your local council’s social services department. If appropriate, they must consult your family (or anyone else with an interest in your welfare) when deciding what is in your best interests, but the final decision lies with them.  

What is mental capacity? 

Having mental capacity means being able to make your own decisions and understand the consequences of those decisions. If you have mental capacity, you have the right to make your own decisions. No one should make decisions on your behalf without your permission, unless it can be shown that you lack mental capacity. 

If you lack mental capacity for a decision, it means you're unable to do one or more of the following: 

• understand the information relating to the decision 

• weigh up that information 

• remember that information for long enough to make your decision 

• communicate your decision (whether verbally, using sign language, or by other means). 

• However, whether someone has mental capacity can change depending on the decision, so someone might be able to make decisions about certain things but not others. Others might be able to make a decision at a certain time, but unable to make the same decision at another time. This is why anyone considering whether you have mental capacity needs to consider your ability to make and communicate a specific decision at the time it needs to be made.  

You should be given as much help as possible to make and communicate a decision before anyone judges that you lack mental capacity. 

Taking time to weigh up or communicate a decision shouldn't be mistaken for a lack of mental capacity. Nor should having a certain condition, such as dementia. For example, someone may still have capacity to make certain decisions for some time following a diagnosis. 

How do I set up a lasting power of attorney 

When you hear people talking about power of attorney, they're likely talking about lasting power of attorney. A lasting power of attorney can help you plan for the future, as it allows someone you trust to act for you if you ever lose mental capacity to make your own decisions. 

This is an overview of how to set up a lasting power of attorney. For more information, visit GOV.UK  or contact the Office of the Public Guardian. 

• Get LPA forms and an information pack from the Office of the Public Guardian. You can either download these online - but it’s important to note that they need to be printed off to be signed. You can also order them by calling 0300 456 0300. Alternatively, you can set up an LPA using the online service on GOV.UK. 

• If you're happy to, you can fill out the forms yourself. But be careful mistakes might mean your LPA is rejected and you need to pay a fee later to reapply. You might want to ask a trusted family member or friend to help you. The Office of the Public Guardian have a step-by-step guide to completing the forms on their website or you can call them for assistance on 0300 456 0300.   

• The completed forms need to be signed, and in a particular order. You (as ‘the donor’) sign first. Your signature must be witnessed. The ‘certificate provider’ must sign next. Finally, your attorney must sign the form, and their signature must be witnessed. If the LPA is not signed in the correct order, it cannot be registered by the Office of the Public Guardian and will be rejected. The 'certificate provider' is someone who confirms that you understand what the LPA is and that you haven’t been put under any pressure to sign it. The certificate provider must either be someone you've known well for at least 2 years or a professional person, such as a doctor, social worker or solicitor. Certain people aren't allowed to be your certificate provider such as your partner or any other family members.  

• Lastly, register the LPA with the Office of the Public Guardian, you cannot use your LPA until registration is complete, which can take several weeks. You can register your LPA if you have the mental capacity to do so. If you sign an LPA while you still have mental capacity but lose capacity before registering it, your attorney can register it for you. 

Alzheimer's Society also provide a digital assistance service to help people fill out the LPA forms. If you don't feel able to complete the forms yourself or don't have access to the internet, for example. To sign up, call their support line on 0333 150 3456.