What is a power of attorney?

In England and Wales there are two types of lasting power of attorney. One or both can be set up.

• A property and financial affairs lasting power of attorney lets someone manage all financial affairs – for example, running bank and savings accounts, paying bills and collecting benefits or a pension. It can be used as soon as it’s registered, with permission.
• A health and welfare lasting power of attorney lets someone make decisions about health, care and welfare – for example, daily routine (e.g. washing, dressing, eating), medical care, and life-sustaining treatment. It can only be used when someone is unable to make their own decisions.

The person or people who will manage any finances or make decisions about care are called ‘attorneys’, and they’re usually friends or family members. The person giving power of attorney is called the ‘donor’.

Do you need to set up a power of attorney?

Many people find it reassuring to know that someone they trust will be able to make decisions on their behalf if they become too unwell. This is particularly the case for people with illnesses such as dementia, which will increasingly affect their ability to understand things and make their own decisions.

Even if you do not have an illness that will affect your thinking and reasoning, speech and communication may well be affected as your illness progresses, making it tiring and more difficult to have detailed discussions about what is wanted.

People can set out some preferences to do with health and care in an Advance Care Plan, but these only apply to the specific treatments and circumstances written about in the document. There may still be some decisions to make which aren't in any such plan. Anyone involved with an Advance Care Plan will try to make the decision they believe is in the best interests of whoever's ill, and in accordance with any wishes.

But if someone has power of attorney, that person can make the decision on your behalf.

When should power of attorney be set up?

In general it's better to do it sooner rather than later. This is because it can only be set up when someone has the mental capacity to make their own decisions. ‘Mental capacity’ means that you are able to understand information and make and communicate your decision.

At the point when someone needs to receive end of life care, they are likely to be too unwell to set up a power of attorney.

Find out more on the Office of Public Guardian's GOV.UK page

Usually the power of attorney will only come into force once it has been registered. Registration with the Office of Public Guardian (OPG) takes up to 20 weeks from receipt of your application, so it might be a good idea to do this sooner rather than later as well, in case your condition changes suddenly.

Setting up a power of attorney doesn’t mean anyone has to give up control, as it can only come into force when capacity to make decisions is lost. For those who lack capacity and for whom there is no welfare attorney appointed, the doctors have a duty to act in the individual's best interests, taking into account the wishes as they may have been expressed to relatives or friends.

If a loved one has already lost capacity and does not have a lasting power of attorney in place for any financial affairs, it's a more complex procedure to get support if there is no-one with authority to act on their behalf.

Emergency applications for people with lack of capacity can be made.

If someone changes their mind, they can always cancel the lasting power of attorney by notifying the attorneys and OPG, even if it’s been registered, as long as they still have mental capacity.

What needs to be done to set up lasting power of attorney?

There are three key steps in setting up a power of attorney:

1. Choosing an attorney(s). An attorney can be anyone over the age of 18, but should always be someone trusted to understand and respect any wishes and make the best decisions. Most people choose someone like their husband, wife, partner, another family member or a close friend. More than one attorney can be chosen. If this is the case, it needs to be specified whether they need to make decisions jointly or whether each can decide things without the other (this can be a good way for people to share the work). Make sure that each person agrees to be your attorney before naming them in the lasting power of attorney.
    
2. Completing the form. In England and Wales, you can get the forms and guidance you need from the Office of the Public Guardian (OPG), who can send out the form - although it can be downloaded from their website or completed online. Often a solicitor will be happy to visit you at home and help to draw up any power of attorney. Once the forms have been completed, they need to be sent back to the OPG. They’ll check that the forms have been completed accurately and if there are errors or problems they’ll return the forms.
    
3. Registering lasting power of attorney. Lasting power of attorney must be registered or any attorney(s) won’t be able to make decisions. There is a fee of £110 for registering it in England and Wales. Each institution an attorney deals with, for example a bank, pension provider or mortgage company, will need to see either the original Power of Attorney or a copy that’s been signed by a solicitor (this is called a ‘certified’ copy), so you may want to get several signed copies when it’s drawn up. Bear in mind that getting different organisations to recognise the power of attorney may in itself take time.

This information is based on our professionals' experience of providing care, and draws on a number of expert references. Find out more about the references for our information. The information on this page applies to England and Wales.