Frequently Asked Questions

Power of Attorney (POA) is a legal document which lets an individual appoint one or more people to make decisions on their behalf – for example about healthcare or finances – if they’re no longer able to or if they no longer want to make their own decisions. There are different types of Power of Attorney eg Ordinary Power of Attorney, Lasting Power of Attorney and Enduring Power of Attorney.

Lasting Power of Attorney (LPA) is the current form of POA.  There are two LPAs:

• Financial Affairs and Property and
• Health and Wellbeing

LPA comes into effect if you no longer want to make decisions for yourself or if you lose mental capacity. The LPA took over from the Enduring Power of Attorney (EPA) in 2007 although, in certain circumstances, the EPA can still be valid.

Ordinary power of attorney (OPA) covers decisions about your financial affairs and is valid only while you still have mental capacity. It is suitable if you need cover for a temporary period (eg hospital stay or holiday) or if you find it hard to get out or you want someone to act for you.

Enduring Power of Attorney (EPA) was replaced by Lasting Power of Attorney in October 2007. If you made and signed an EPA before 1 October 2007, however, it should still be valid. An EPA covers decisions about your property and financial affairs and it comes into effect if you lose mental capacity or if you want someone to act on your behalf.

In the UK, ‘Attorney’ refers to the person you appoint to act on your behalf under your Power of Attorney document.

In the UK, the ‘donor’ is the person who appoints the person to act as their attorney.

Anyone who is over the age of 18 and has mental capacity can be an attorney. They don’t have to be legally trained. Usually the Donor will appoint a family member or close friend but it could be a professional, such as a solicitor or accountant.

There is no limit on the number of Attorneys – it depends on your individual needs. The usual number is two but you can have just one. It is a good idea to have a replacement Attorney if you have only one Attorney. If you have more than one Attorney, you will need to decide whether they are acting jointly (they must all agree on any decisions made on your behalf) or jointly and severally (an individual Attorney can decide on a course of action by themselves).

See our article on General Guidance for the Donor on appointing a Power of Attorney.

If you believe you are in danger, contact your local police or dial 999 in an emergency. Contact the Office of the Public Guardian, which monitors Attorneys and Deputies, and has the power to investigate claims of fraud or mistreatment, and raise concerns with police or social services. Charities such as Hourglass have confidential helplines (0808 808 8141) for those concerned about financial or physical abuse.

You might assume your spouse or partner could take over control of your finances, including pensions, if you couldn’t look after yourself but you’d be wrong. You might also think they’d automatically control decisions about your healthcare and wellbeing, but that’s not the case either. Without Power of Attorney, they would not have the authority and this could cause a lot of problems. For example, family members can and do disagree about how to act on behalf of the donor – if you want your partner to have the final say, you must grant them Power of Attorney.

Just to reiterate … not unless you have given them the necessary powers. Of course, your family will generally be consulted by medical professionals if you are mentally incapacitated but the ultimate decision-making power will remain with the doctor in charge of your care.

Yes. If you are single, you may want a trusted friend or family member to act on your behalf should you lose mental capacity.

Being next of kin has no legal standing and does not entitle you to make financial decisions or decisions about a loved one’s welfare. To represent your loved one you need to be appointed as a Power of Attorney. So, no, being next of kin does not override a POA.

Yes, the two documents are completely separate. A will is effective only after a person has died. Power of Attorney, however, is in force only while a person is alive.

Yes, the laws in England and Wales, Scotland, and Northern Ireland do differ.

Lasting Power of Attorney gives someone the authority to take decisions about your welfare and wellbeing, and/or financial decisions, once you lose mental capacity or no longer want to make such decisions yourself.
Ordinary Power of Attorney grants the authority to make decisions about your financial affairs while you still have mental capacity eg if you wanted your banking looked after while you went to hospital.
Enduring Power of Attorney was replaced in 2007 but remains valid, granting the authority for an Attorney to take decisions about finance and property on your behalf if you lose mental capacity.

See our articles on Power of Attorney for more details.

Continuing Power of Attorney gives someone the authority to deal with financial and/or property issues on your behalf. It can be used immediately or you can require it is used only in the event of your incapacity.

Welfare Power of Attorney gives someone powers to make decisions about your health and welfare on your behalf. After the Welfare POA has been registered, it can be acted upon only when you have lost mental capacity.

Combined Power of Attorney offers a combination of Continuing and Welfare powers. Most POAs registered in Scotland are Combined POAs.

For more information see Office of the Public Guardian Scotland

In Northern Ireland, unlike England & Wales, and Scotland, you can’t give another person the legal power to make decisions about your health and welfare, but two types of Power of Attorney are available.

General or Ordinary Power of Attorney is used when you need temporary help eg if you’re going into hospital and want someone to look after your finances. If you lose mental capacity, this POA is no longer valid.

Enduring Power of Attorney lets a person/people you choose make finance and property decisions on your behalf and, unlike the General POA, it can continue if you lose mental capacity.

For more information see NI Direct Government Services

Mental capacity is judged by the ability to make (or communicate) decisions when they need to be made. The assumption must be that the person does have capacity until proven otherwise.  See our articles on Mental Capacity.

It has to be assumed that you have mental capacity until proven otherwise.  You may lose capacity temporarily because of an accident or permanently because of an illness such as dementia.  There is guidance under the Mental Capacity Act to tell professionals how to establish whether you have lost capacity or not. It is possible to lose capacity for issues such as complex financial affairs but still have capacity for everyday matters such as choosing what you want to eat for lunch.

For more information see our article Lacking mental capacity

If you’re thinking about it – and you probably are, if you’re on this website – then do it promptly, before events overtake you. Remember, an LPA need not be used immediately but getting one in place now is the smart thing to do to help minimise delays in dealing with your affairs should one become necessary.

Things may not turn out exactly how you might want. If you lose mental capacity and can’t make your own decisions, someone will need to apply to the Court of Protection to be appointed as your Deputy. If these powers are granted, they will have authority to access and run your affairs in a similar way to an Attorney. This process tends to take longer and cost more than appointing an LPA – and it is by no means certain the person who ends up helping you is the person you would have chosen while you still had capacity.

As of December 2022, the registration fee for an LPA in England and Wales is £82. If you are setting up an LPA for both financial and property matters, and another for health and welfare, you’ll have to pay £82 for each one. In Scotland, the fee is £83 and in Northern Ireland it will cost you £151.  There are dispensations for those on low income.

See our article on appointing a Lasting Power of Attorney

If you earn less than £12,000, you can apply for a cost reduction. If you’re on certain benefits, such as Income Support, you might also be able to apply for an exemption.

See LPA 120 for the current fees.

The advice in England and Wales is to allow 20 weeks for the process. So, if you think you are going to need help looking after your health, welfare or finances soon, then start the process as promptly as possible.

In Scotland, the Office of the Public Guardian aims to process POA applications within 30 days of receiving the documentation but it is reported that there can be long delays. Likewise, in Northern Ireland it’s going to take weeks rather than days. Again, it’s smart to start the process as soon as you can.

In England & Wales it’s not essential, though a solicitor can make things easier if you are nervous about filling in forms. You can also use an online service which has a fixed cost.

Likewise, in Scotland you don’t need a solicitor to draft a POA, although the Office of the Public Guardian recommends taking legal advice to ensure the POA wording is watertight.

In Northern Ireland, you can set up a POA with a solicitor, a will writer or the Office of the Public Guardian. The Office of Care and Protection can help with further advice.

In England & Wales, a Financial LPA can be activated as soon as it has been registered with the Office of the Public Guardian, unless you have specified otherwise. But a Health and Welfare LPA can be activated only once you have lost mental capacity.

No, you can register your LPA whenever you want. However, it’s smart to do this at the same time you create your LPA so everything is in place should you need help. If you don’t register your LPA and later lose mental capacity, your Attorneys can deal with registration on your behalf. But it’s additional paperwork at a time of stress that can be avoided simply by registering your LPA as soon as you can.

An LPA can be revoked any time you want, providing you have the mental capacity to make the decision.

See our article on Revoking your Power of Attorney

Aside from revoking your LPA, you generally can’t make changes to an LPA after it has been registered. The Office of the Public Guardian can advise you further.

No, the Lasting Power of Attorney will cease upon your death. The death must be reported to the Office of Public Guardian