It can be a difficult subject to think about, but one day you might lack the mental capacity to make key decisions about your life, your finances and your future.
If that happens, who will make these judgements on your behalf? Giving someone Power of Attorney can ensure these crucial decisions are in the hands of someone you trust to keep your best interests at heart, minimising the distress mental incapacity has on your life.
Here, our specialist Powers of Attorney solicitors offer a guide for what this means for both sides of this agreement, the responsibilities involved, and advice on how to prepare for this eventuality.
We can work with you and the Court of Protection, ensuring you get the opportunity to make decisions on behalf of your vulnerable loved one.
Power of Attorney is giving someone the ability to act on your behalf to make decisions that impact your life.
This usually relates to financial or medical decisions when the donor (the person giving Power of Attorney) does not have the mental capacity to make these decisions themselves.
You must have adequate mental capacity when you decide who you will give Power of Attorney to, which is why it is a good idea to speak to our solicitors about our Power of Attorney services before you need it.
If a loved one has already lost mental capacity without giving someone Power of Attorney, you will need to apply through the Court of Protection for a Deputyship Order. This can be a more costly, complicated process, especially if someone else objects to you being made responsible for your loved one’s decisions.
If you set your Power of Attorney early, it offers peace of mind should you suffer an accident or sudden illness that reduces your mental capacity. It’s not pleasant to think about this happening to you or a loved one, but planning ahead helps to minimise the impact this major change can have.
While you are not obliged to contact a solicitor about assigning Powers of Attorney, it is a sensible decision to protect your best interests for the future, and avoid any risks associated with this authorisation.
A DIY alternative may not include crucial protection clauses and contingencies in case something happens to your attorney. This could cost you thousands down the road to fix mistakes, or even worse, if your attorney attempts to take advantage of their position if you lose mental capacity.
By the letter of the law, you can give a Power of Attorney to anyone if they are 18 or over and they have the mental capacity to make their own decisions.
Typically, your attorney should be someone you trust completely. Common choices include:
It is possible to give more than one person Power of Attorney over your decisions, but you must specify if they make all decisions jointly, or they can make decisions separately.
When choosing who you give Power of Attorney to, consider the following:
Moreover, it is not uncommon to give a professional like your solicitor Power of Attorney, as they understand the role and responsibilities associated with it. Our Partner Melinda Giles is a Professional Deputy at the Court of Protection, and has been approached on numerous occasions to act in this capacity. As a professional attorney, a solicitor has a higher duty of care.
There are various types of Power of Attorney that you can set up. The two types of Lasting Power of Attorney include:
This gives your appointed Power of Attorney the authority to make decisions relating to your money, property and other possessions. This includes managing your bank accounts, paying bills, collecting pensions, and selling a home or property.
This gives your appointed Power of Attorney the authority over your daily routine and medical care, as well as moving into a care home and life-sustaining treatments, where the donor doesn’t have the capacity to make their own specific decisions.
It is recommended to make both at the same time to ensure you have all areas covered should you lose mental capacity unexpectedly.
The Lasting Power of Attorney replaced the Enduring Power of Attorney (EPA) in October 2007. Since then, no EPA has been set up in England or Wales, but any EPA set up prior to this time can still control the property and financial affairs of a donor. If you currently have an EPA, you may wish to seek advice as to whether an LPA suits your circumstances better.
You can prepare an LPA online yourself. The forms required for this are available from the Office of the Public Guardian's (OPG) website.
However, if you would like to receive professional advice and for our solicitors to prepare the LPA, then you do not have to download any forms.
Instead speak to us and we will arrange an advisory session, the completion of the forms and the certificate provider, followed by registering the LPA with the Office of the Public Guardian.
Until your LPA is registered, your chosen attorney will not be able to use the Power. As registration can take up to ten weeks, it’s not just recommended to make an LPA, but that you look to register this as soon as possible.
Being diagnosed with dementia is not the equivalent to losing mental capacity. If a medical professional deems that your parent, grandparent or another elderly loved one still has adequate capacity, they can apply for Power of Attorney the standard way highlighted above.
However, in such a case, it is more important than ever that time is of the essence and that proper professional advice is sought.
The difficulty comes when a person loses mental capacity before making a Power of Attorney. At this point, it is no longer possible to make a Power of Attorney, and you will instead have to apply to the Court of Protection for a Deputyship Order. Here, the court will determine if the person requesting deputyship is right to receive it.
We recommend speaking to a law firm about this alternative to Power of Attorney, as it will likely require more preparation and time to arrange correctly.
You can download the Power of Attorney forms from the Gov.UK website, as well as useful guidance and information about the process.
You can fill out a Power of Attorney online through the Gov.UK website. To do so, you’ll need to create an account to start your LPA, which you can sign in to resume at any time.
Once you have filled out the forms online, you will need to print them out and sign them before sending these on to the Office of Public Guardian.
It is possible to give Power of Attorney to multiple people at the same time with a Joint Power of Attorney. However, this specifically means that all your chosen attorneys must agree on a decision relating to your finances or wellbeing, and cannot act separately on your behalf.
If you would like to give your attorneys the ability to make decisions separately, you can set up a ‘Jointly and Severally’ Power of Attorney. It is wise to seek advice if you want to appoint Joint Attorneys or if you own any property jointly.
If you are a Joint Power of Attorney and you disagree with the other attorney, you should look to resolve this between you and the donor if they still have mental capacity. If the issue can’t be settled this way, you should seek advice.
There must be at least two witnesses to the signing of a Lasting Power of Attorney who are 18 or over. If you have designated multiple attorneys, they can be a witness for each other’s signature.
However, your attorney cannot be a witness for you signing the LPA or sign as the certificate provider. You also can’t witness yourself sign the LPA.
You might want to assign one or several Replacement Attorneys as part of your document. These will replace your existing attorney if for whatever reason they are unable or not willing to fulfil their responsibilities.
You are under no obligation to do this, but it does provide an extra layer of security and saves the expense of establishing a completely new LPA if your attorney needs to change.
After filling out and sending the relevant forms to the Office of Public Guardian, it typically takes between eight and ten weeks to register someone as your attorney.
That is why it is advisable to arrange your Power of Attorney long before you lose mental capacity, as until your attorney is registered, they can’t make any decisions on your behalf.
The cost of Power of Attorney depends on whether you attempt to go it alone or speak to a solicitor. In all cases there is a court fee which currently stands at £82, unless you are entitled to a discount.
It’s important to note that this fee must be paid for both a Property & Financial Affairs LPA and a Health & Welfare LPA, meaning if you want to register both, the court fee rises to £164.
It isn’t an obligation to contact a specialist Power of Attorney solicitor, but we cannot overemphasise how important this is. Should you one day lose the capacity to make decisions for yourself, this document will outline who will be acting on your behalf for critical decisions.
Seeking this advice helps ensure all parties involved are clear about their roles and responsibilities, and minimises the potential of financial fraud or other forms of abuse. The ramifications of this can be far costlier than the price of reaching out to a law firm for advice about your Power of Attorney, so we advise not taking the risk over your future.
If you paid to register a Power of Attorney in England or Wales between 1st April 2013 and 31st March 2017, you could be owed a refund of up to £54 per LPA registered. Money Saving Expert offers a table of potential refunds on their website.
A Power of Attorney is valid and ready to use once it is registered at the Office of Public Guardian. If it is an LPA for Finances, you can use it at any time that the person giving the power wants you to, and you can make decisions for them if they have lost mental capacity.
With an LPA for Health & Welfare, you cannot make decisions for anyone that still has the capacity to make decisions for themselves. These usual factors will also depend on any specific guidance/instructions included in the Power when it was made.
Being appointed a Power of Attorney gives you a great deal of responsibility over another’s financial and/or medical well-being, so it is important to know what is expected of you.
Above all else, you must make any decisions with the donor’s best interests in mind, and you can only seek to benefit them.
By agreeing to be someone’s attorney, you are legally obliged to:
Other responsibilities depend on whether you have been given a Property & Financial Affairs LPA or a Health & Welfare LPA, and what instructions or guidance is contained within that document.
A Property & Financial Affairs LPA is responsible for looking after the donor’s money and property. This can include:
A Health & Welfare LPA is responsible for the donor’s medical care and overall well-being. It is important to note that, even if you have an LPA of Health & Welfare, you cannot make a decision for a person where they can make that decision for themselves. This includes:
You may need to apply to the Court of Protection to make a one-off decision in certain circumstances, such as if the donor’s living will and LPA give different instructions.
This is a rather complex subject, and one you should discuss with an expert Power of Attorney solicitor. As mentioned above, any gifts or money transferred must be consistent with the best interests of the donor and correlate to gifts they have previously given in the past.
Therefore, it is possible for attorneys to transfer or gift the donor’s money to themselves, but only if this is something the donor could reasonably be expected to do. Also, a gift should not clash with the means of the donor, especially if they need to pay substantial care fees.
As these circumstances will vary from person to person, we recommend discussing your options with one of our Power of Attorney solicitors, who can advise you if your gift will be allowable or if you need to apply to the Court of Protection to plead your case.
Your Lasting Power of Attorney ends automatically when you pass away. From that point on, affairs that need to be managed, such as your will and funeral arrangements, will be handled by the designated executors or your personal representatives.
If you are an attorney and your donor dies, you must stop any actions on their behalf immediately and send the original Power of Attorney document, their death certificate, and any other relevant forms to the Office of the Public Guardian as soon as you’re able to.
If your attorney dies, their powers end and responsibility passes to your other attorneys or a replacement attorney. If you have no alternatives or replacements, you (or a trusted representative) will have to send the OPG a copy of their death certificate, the original LPA, all certified copies of this document, and a return address so they can resend the forms required to establish another Power of Attorney.
To avoid these added complications, we recommend considering replacement attorneys where possible when initially determining your LPA.
If you don’t want to end your Lasting Power of Attorney, but make changes, it is possible to do this at any time as long as you still have the mental capacity to decide this yourself.
You can request to change most details of your LPA, but the most common reasons are:
To remove one of your attorneys, you’ll need to send the Office of the Public Guardian a ‘partial deed of revocation’. Like the standard deed of revocation, this removes any powers one of your attorneys has. However, you specify within the text that you are only revoking Power of Attorney for one of the individuals.
For changes to your attorney’s details, such as a change of name or address, you must write to the OPG about these, with supporting documents verifying this. Not informing of these changes risks invalidating your LPA should you lose mental capacity, so it is important you inform the OPG as soon as possible.
If one of your attorneys dies, tell the OPG and send them your original LPA (and any certified copies), a copy of their death certificate, and a return address for your documents.
If you take issue with any of the decisions being made on your behalf by your LPA, or you feel they are taking advantage of this arrangement, you can take action in several ways:
These are people and organisations you can trust to keep your best interests at heart, so don’t feel intimidated to talk about any problems you are experiencing with your LPA. This is equally true if you fear a loved one or neighbour is being taken advantage of or abused by their attorney.
You can end your Lasting Power of Attorney any time after establishing it, as long as you have the mental capacity to make this decision. You will need to send the Office of the Public Guardian the original LPA document and a written statement explaining why you are ending this Power of Attorney, known as a ‘deed of revocation’.
The important thing to note here is that you must have the mental capacity to decide you want to revoke a Power of Attorney. A mentally incapable person cannot revoke a Lasting Power of Attorney. You must also inform your attorney and any relevant third parties that their responsibilities for you have ended.
It is an unfortunate aspect of Powers of Attorney that, in the wrong hands, they can leave the most vulnerable members of society open to abuse.
Even if the person selected is a close family member, there are numerous cases of attorneys exploiting their position to benefit from their donors, particularly financially.
According to the Office of the Public Guardian, 1,729 investigations into actions of attorneys and deputies were carried out in the 2017/18 financial year, a 40% increase over the previous year. This correlated with a rise in the number of DIY and online submissions for LPAs without professional guidance.
This demonstrates the importance of receiving professional advice from a qualified solicitor. They will act in your best interests, whether you’re a donor or attorney, and explain the process fully so you’re aware of your responsibilities. It will also ensure that clauses are put in place to protect a donor in cases of Powers of Attorney being abused.
Furthermore, organisations like Solicitors for the Elderly are set up to guide solicitors on best practice when managing the affairs of the elderly and vulnerable in society. Our Partner Melinda Giles is a member of this collective, meaning she applies the independent, confidential and expert advice this group emphasises.
Above all else, it is critical to speak to a solicitor before making a Power of Attorney to make sure your finances and well‐being are protected, and that you have chosen someone who will work in your best interests. Furthermore, if you suspect abuse by someone’s LPA towards their donor, contact a professional.
Penalties for abusing Power of Attorney in the UK depend on the severity of the abuse. Financial abusers can be charged with numerous criminal offences, including theft and fraud.
These carry a range of penalties, including prison sentences, fines and community service. The Power of Attorney will then be reworked by the Office of Public Guardian or another regulator.
The guidance from HMRC confirms that each person can make as many ‘small gifts’ at Christmas as they like. HMRC defines small gifts as those where the value is £250 or less per person.
A divorce is difficult for a family to navigate through, but it can be especially hard when there is a child that has been diagnosed with a neurodivergent condition.
It is human nature to think “it will never happen to me”, but it is a sad fact of life that an increasing number of us may, at some point, have a loved one that may go into a residential care home or require care and support in their own home. This may be due to illness, old age or perhaps as the result of personal injury or an accident, and it often happens at the most inconvenient of times.
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