A power of attorney is a legal document that allows a nominated person to make decisions and act on your behalf if you are no longer able to do so or if you no longer want to make your own decisions. There are various reasons why someone may choose to appoint a power of attorney.

This could be a temporary situation, falling ill and needing help with everyday tasks such as paying bills while you recover. You may need to plan for the long term, for example, being diagnosed with an illness which may affect your mental capacity and the ability to make your own decisions in the future.

Power of attorney can be put into place before a person is unable to make their own decisions or loses their mental capacity. It can then be decided whether the power of attorney is put in place from the registered date or becomes “active” only in the event of the individual losing their mental capacity.

There has been a concerning rise in the number of power of attorneys being under investigation. Figures from the Office of the Public Guardian show that there were 1,729 investigations into the actions of attorneys and deputies throughout the 2017/18 tax year. This is a 45% increase from the 1,199 investigations in the previous year.

Most of these investigations involve those who have received authority when a person still has mental capacity, only a small percentage relate to deputies who have been appointed to make decisions when someone has lost mental capacity.

Figures obtained by mutual insurer Royal London, revealed that investigations into deputies only accounted for 69 investigations in 2016/2017 and 82 in 2017/2018. This, it said, is a result of additional safeguards in place under the deputyship regime. This includes the requirement to file annual returns and detail what decisions have been made on the individuals behalf and why.

So, it would appear that many people need further information regarding what they can and can’t do in their role as power of attorney.

Types of power of attorney

There are different types of power of attorney and you can set up more than one.

Lasting Power of Attorney (LPA) came into effect from October 2007, before that an Enduring Power of Attorney (EPA) would be made. It is no longer possible to make an EPA, but any made before October 2007 remain valid.

Lasting Power of Attorney includes Personal Welfare LPA and Property and Financial Affairs LPA:

Personal Welfare LPA

A Personal Welfare LPA allows the attorney to make decisions that affect your daily life. This can include washing, dressing, eating, medical care, moving into a care home and life-sustaining medical treatment. This is used when you are unable to make your own decisions.

Property and Financial Affairs LPA

A Property and Financial Affairs LPA provides the attorney the power to make decisions about your money and property, this includes managing your bank or building society accounts, paying bills, collecting your pension and, if necessary, selling your home.

Enduring Power of Attorney EPA

An EPA only deals with property and financial affairs, not with personal welfare issues.

Power of Attorney

This covers decisions about your financial affairs and is valid while you still have mental capacity to make decisions for yourself. This can be used when you need someone to act for you while you’re able to supervise their actions, for example, if you need someone to act for you while you are in hospital for a short period.

Giving someone power of attorney

Putting in place a power of attorney can help to provide peace of mind that someone you trust is looking after your affairs. This legal status can be given to anyone aged 18 or over who has the mental ability to make financial, property and medical decisions on your behalf in the future. This legal authority is called “lasting power of attorney”.

The individual who has been granted this authority is known as the “attorney” and you will be known as the “donor”

Appointing attorneys

If you wish you can choose to appoint more than one attorney to act either jointly, meaning they must always make decisions together or jointly and severely, making some decisions together and others individually.

For example, you can appoint attorneys to make decisions together regarding money, but state that only one attorney can make decisions on where you will live.

Why apply for Lasting Power of Attorney?

If you lose mental capacity and do not have lasting power of attorney in place, your loved ones will need to apply through the court to become a “deputy” which can be a long and expensive process.

Applying for power of attorney

A personal welfare and property and financial affairs LPA can be set up at the same time. You can apply online for power of attorney on the gov.uk website.

Forms can be filled out by yourself, with the help of a solicitor or a local advice agency. The LPA will then need to be signed by a certificate provider.

Registering the power of attorney

A power of attorney must be registered before it comes into force, this can be registered on gov.uk. The LPA must be registered while you still have the mental capacity and it cannot be used during the registration process, which takes around nine weeks. Once the power of attorney has been raised, the original document will be returned to the applicant. The Office of the Public Guardian also gives notice to the donor that the LPA has been registered. If you lose mental capacity but signed an LPA while you still had mental capacity, your attorney can register it for you.

The registration for each LPA is £82, so it would cost £164 to register both an LPA for property and financial affairs and an LPA for health and welfare. If you want to use a solicitor, you’ll need to pay them to complete the forms for you and fees may vary.

Once the LPA is registered, a power of attorney bank account can be set up. This allows third party account access to the attorney to help manage the account and act on your behalf.

Please click here to view our guide on setting up a new power of attorney account or how to register for power of attorney on an existing Paragon account.

Cancelling power of attorney

You can cancel your lasting power of attorney at any time, even when the application has been registered. You must tell your attorneys and the Office of the Public Guardian so they can remove the LPA from the register.

Power of Attorney automatically ends if:

• The attorney or donor dies.
• The attorney or donor becomes bankrupt.
• A marriage or civil partnership between the attorney and donor is annulled or dissolved.
• The attorneys lack the mental capacity to make decisions.

The court of protection can also cancel an LPA if the attorney is not acting in the donor’s best interests and is making excessive “gifts” to themselves or others.

Cancelling enduring power of attorney

To cancel an unregistered EPA, you will need to sign a document called a Deed of Revocation, but you may wish to seek legal advice first. If the EPA has been registered, it cannot be cancelled except by the permission of the Court of Protection.