What is an enduring power of attorney (EPA)?

How do I set up a 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.

1. Firstly, you'll need to get the LPA forms and an information pack from the Office of the Public Guardian. You can either download these online or order them by calling 0300 456 0300. Alternatively, you can set up an LPA using the online service on GOV.UK.
2. 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. 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.  
3. The completed forms need to be signed, and in a particular order. If you completed the forms using the online service, you’ll need to print them off to be signed. 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 – including your partner or any other family members. 
4. 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. 

Do I need a solicitor to set up a lasting power of attorney (LPA)?

While you don't have to use a solicitor to create an LPA, it could prevent problems later on – especially if you're unsure of the process or your affairs are complex. It's more costly than filling the forms yourself, but you might find that the reassurance of having professional advice is worth it. 

The costs for setting up an LPA can vary a lot from solicitor to solicitor, so it's a good idea to call several firms for quotes before you choose. 

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.

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

Registering an LPA costs £82. If you're registering 2 LPAs at the same time –  one for financial decisions and one for health and care decisions – then you'd need to pay £82 for each LPA, so £164 in total. 

However, if you're on a low annual income (under £12,000), you might be eligible for a 50% discount, and if you're receiving certain income-related benefits you won't have to pay anything at all. 

Who should I choose as my attorney?

You could choose someone you're close to, such as a family member or friend. Or you could choose a professional, such as a solicitor. It's important to be sure that whoever you choose will make decisions in your best interests.

It’s also important that you give the person you ask to be your attorney time to think about the role and responsibilities, to make sure they feel comfortable doing it.

Whoever you choose, your attorney needs to be 18 or over, and they can't be a professional care worker apart from in exceptional circumstances (for example, if they're your only relative). There are other restrictions on who you can choose to be your attorney. For example, an attorney for financial decisions cannot be bankrupt.

Find out more about choosing an attorney on GOV.UK

How many attorneys can I have? 

You can appoint as many attorneys as you like. It can be a good idea to appoint more than one attorney, but if you do, you must decide how they're going to make decisions. They can make decisions:

• jointly, meaning they must make all decisions together
• jointly and severally, meaning they may act together or separately, as they choose.

Or you may want to specify that attorneys must act jointly for specific decisions, such as selling a house, but they can act jointly and severally for all other decisions.

You can also appoint replacement attorneys, in case someone you've chosen becomes unable to act on your behalf, for example if they die or lose mental capacity.

Do I need to pay my attorney?

Your attorney can claim back out-of-pocket expenses they incur as part of the role – such as travel or postage costs. They can claim these from your money, and they must keep an account of the expenses and any relevant receipts.

But usually your attorney can’t claim for time spent carrying out their duties unless they're a professional attorney, such as a solicitor. Given that professional attorneys charge for their time, it's important to consider the costs carefully before you choose an attorney.

There is, however, an exception: a non-professional attorney can be paid for their duties if the person who set up the power of attorney specified that they should in the instructions part of the LPA form.

How should my attorney make decisions?

Your attorney must understand and follow certain principles, which are set out in the Mental Capacity Act 2005 and its code of practice.

Your attorney should:

• Assume you have mental capacity unless shown otherwise. Your attorney must only make decisions on your behalf if it can be shown you don't have mental capacity.
• Help you make a decision. You must be given as much practical help as possible to make your own decision before anyone decides you’re unable to. For example, if you’re better able to understand things at a particular time of day, you should be helped to make a decision then. Or if you're better able to understand or communicate using pictures or sign language, then this should be supported.
• Avoid making assumptions based on 'unwise decisions'. You shouldn’t be treated as unable to make a decision just because you make a decision that others might consider unwise or eccentric.
• Make the least restrictive decision. Anyone making a decision for you should consider all the options and choose the one that's the least restrictive of your rights and freedoms.
• Act in your best interests. Your attorney must consider a range of factors and reach a balanced conclusion about what decision is the right one for you.

What should I do if I'm having problems with my attorney?

If you're worried that your attorney isn't acting in your best interests, or that someone else's attorney isn't acting in their best interests, contact the Office of the Public Guardian. They have a responsibility to investigate allegations of mistreatment or fraud. If necessary, they can also report concerns to the police or social services. You can get in touch with the Office of the Public Guardian by calling 0300 456 0300 or by emailing them on customerservices@publicguardian.gov.uk. 

If you're concerned that abuse or neglect is taking place, contact the local council's safeguarding team. This team have duties to investigate concerns about abuse or neglect and take action where needed.

If you're worried that you or someone else is in immediate danger, contact the police on 999. 

If you want to talk to someone about it confidentially, contact the Hourglass helpline on 0808 808 8141. 

The same applies if you have concerns about a deputy.

What happens if I lose mental capacity and I haven't set up a power of attorney?

A power of attorney gives someone you trust the authority to make decisions on your behalf.

If you lose mental capacity and you don’t have a valid lasting power of attorney (LPA) or enduring power of attorney (EPA), someone wishing to act on your behalf may need to apply to the Court of Protection to be appointed as your 'deputy'. This can be a lengthy and costly process, and you can't choose who your deputy is, because in this situation you'd have lost mental capacity to choose who acts for you. 

The Court of Protection will consider whether the person applying to be appointed as deputy is suitable for the role. 

For an explanation of 'deputies', see the next section.

What if I lose mental capacity and I receive benefits?

If someone receives benefits, they lose mental capacity and they don't have an attorney, someone can apply to the Department for Work and Pensions (DWP) to become their 'appointee'. An appointee has authority to manage and spend that person's benefits, including their State Pension. This means that, if the person only has income from benefits and no other income or capital, then a deputy application may not be needed. Otherwise, a deputyship may be needed.

Find out more about becoming an appointee on GOV.UK

What is a deputy and what do they do?

A deputy has similar responsibilities to an attorney. They can only act within the authority set out by the Court, and they have a duty to act in good faith. They must also follow the same principles as attorneys to make sure that any decisions they make on your behalf are made in your best interests.

Like lasting powers of attorney, there are 2 types of deputy: the property and financial affairs deputy and the personal welfare deputy. Personal welfare deputies are usually only appointed in rare circumstances, though – for example, when there's doubt about whether decisions will be made in someone's best interests because their family disagree about their care.

Being a deputy involves a lot of responsibility, so anyone asked to take on the role should consider carefully whether it’s something they’re comfortable doing. 

If you're concerned that your deputy isn't acting in your best interests – or that someone else's deputy isn't acting in their best interests – contact the Office of the Public Guardian by calling them on 0300 456 0300. 

What happens when you apply to be someone's deputy?

When you apply to the Court of Protection to be appointed as someone's deputy, the Court will consider whether it's necessary for ongoing decisions to be made on their behalf, and whether the person applying is suitable for the role. The Court usually does everything by post, rather than holding a hearing.

Find out more about applying to be a personal welfare deputy on GOV.UK

Find out more about applying to be a property and financial affairs deputy on GOV.UK

What is an independent mental capacity advocate (IMCA)?

If you’re ever unable to make certain important decisions and there’s no one able to speak on your behalf beyond health and care staff, such as a family member or friend, an independent mental capacity advocate (IMCA) must be appointed to support and represent you.

The decisions your IMCA might be involved in could relate to things such as serious medical treatment, a long-term hospital or care home stay, or a care review. The NHS organisation or local council providing your care are responsible for appointing an IMCA. 

You'd only be appointed an IMCA for specific decisions and when there is no one able to speak on your behalf.  

Find out more about IMCAs on GOV.UK