Anyone who is aged 18 or older who has the mental ability to make decisions for themselves can arrange for someone else to make these decisions for them in the future. This legal authority is called "power of attorney".
The person who is given power of attorney is known as the "attorney" and must be over 18 years old. The person who is giving the power of attorney is known as the "donor".
A donor can appoint just one attorney, or more than one attorney, to act as follows:
- "jointly" – they must always make decisions together
- "jointly and severally" – they have to make some decisions together and some individually
- "jointly" on some matters, and "jointly and severally" on others
For example, someone can appoint attorneys to act jointly when making decisions over their money, but state that only one attorney, acting independently (or severally), should decide where the person should live. The person has the right to say the attorneys must act jointly on all their affairs.
If more than one attorney is appointed to deal with the same issue, they must act jointly unless the power of attorney states they do not need to. The attorneys must agree before they act on the issue.
Types of power of attorney
There are three different types of power of attorney:
Lasting Powers of Attorney (LPA)
1) personal welfare LPA
2) property and affairs LPA
Enduring Powers of Attorney (EPA)
3) EPA deals only with property and affairs
It is no longer possible to create an EPA as they were made under a previous law, the Enduring Powers of Attorney Act 1985, before the Mental Capacity Act 2005 came into effect in this area. An EPA made before October 1 2007 remains valid.
Both EPAs and LPAs must be registered with the Office of the Public Guardian. LPAs can be registered at any time. Donors can register LPAs while they are able to make decisions for themselves.
Alternatively, LPAs can be registered by attorneys at any time. However, personal welfare LPAs will only be effective once the person has lost the capacity to make their own decisions.
EPAs made under the old law can only be registered if the donor is losing, or has lost, their mental capacity and must be registered by the attorney.
You can apply for LPA on the GOV.UK website, or you can contact the Office of the Public Guardian (OPG) for an application pack:
- by post at the Office of the Public Guardian, PO Box 16185, Birmingham, B2 2WH
- by phone on 0300 456 0300 – lines are open Monday to Friday, 9am to 5pm, and 10am to 5pm on Wednesdays
For people who want to go online but have difficulty using IT for whatever reason, OPG provides assistance. Ask OPG for more information.
Keep reading, or click on the links below to find out more about:
Applying for power of attorney
As a donor, to give power of attorney you should understand exactly what powers you are giving to someone else. GOV.UK has information to help you understand what a LPA will mean for you and the person you appoint to make decisions for you. You can also make a power of attorney online.
You can talk to a lawyer if you have problems answering any of the questions or if you want them to check what you have done. You can call the Office of the Public Guardian and the Court of Protection first to see if they can help on 0300 456 0300.
Legal aid, in the form of advice and assistance, may be available for welfare LPA issues, but not for property LPA. The Law Society will be able to tell you which solicitors offer legal aid. You will be eligible for this legal aid only if you pass a means test.
You can contact the Law Society by writing to them at 100-113 Chancery Lane, London WC2A 1PL, or by calling 020 7242 1222. You can also search for solicitors who specialise in this area on the Law Society online directory.
Execution of Power of Attorney forms and 'certificate of capacity'
Once the LPA is completed, it has to be printed and signed (or "executed") in the presence of a witness, who certifies that when the form was signed, the person granting the power of attorney:
- understood its purpose and the scope of authority being granted
- was not being unduly pressured or being defrauded
- was not affected by anything else that could affect the validity of the document
This certificate can be signed by either someone known to the person making the LPA for at least two years, or by someone who "because of their relevant professional skills and expertise, considers themselves able to provide the certificate".
This person must be acting independently and must not be a relative, business partner or employee, or anyone involved in a care home where the person lives.
If the donor is under a section of the Mental Health Act 1983, they can still make a Lasting Power of Attorney order as long as they have the mental capacity to do so.
Being granted personal welfare LPA over someone else
Having an LPA over someone's personal welfare may mean you need to make decisions about the healthcare and welfare of the person you are looking after. There may be one or more people with this responsibility, who will each be referred to as the person's attorney.
If you have this power, you may have to decide:
- where the person is to live
- whether a care home or a nursing home is best for them, and which one
- whether the person can continue to live at home with help from social services
You will be able to decide if the donor should:
- receive healthcare treatment
- not receive a particular healthcare treatment
- stop receiving a particular healthcare treatment
Some people who have a progressive illness sometimes make a decision about whether they would want a particular treatment in the future. They write down or tell others these wishes while they are mentally well, or have "mental capacity".
If the donor made a decision, in advance of losing their mental capacity, to refuse future medical treatment (known as an advance decision), you cannot override their decision unless the LPA was made later and specifies that you have the power to do so.
What personal welfare power of attorney can't do
A health and welfare LPA does not come into force until such time that the donor has lost the capacity to make decisions for themselves.
There are some decisions an attorney can't make for another person. These include refusal of any medication prescribed by a responsible clinician if the person is under a section of the Mental Health Act 1983 or on leave from hospital. It may help to seek further advice, including legal advice, if you're concerned about medication issues.
If the donor is under a guardianship order, you can't make decisions about where they should live, even though you have LPA. You will not be able to make any decisions that conflict with the wishes of a guardian.
You must check whether, as an attorney under a personal welfare LPA, you can make a decision about life-sustaining treatment. Some advance decisions specifically deal with circumstances in which the person wishes to refuse life-sustaining treatment, and there are special considerations to be addressed.
Lasting Power of Attorney and restraint
If you have personal welfare LPA, you may sometimes consider "restraining" (stopping or hindering) the person you're looking after from doing something you think will harm them or others.
Under the law, you are considered to be restraining someone if you:
- physically force them to do, or stop doing, something
- threaten to physically force them to do, or stop doing, something
- prevent them going somewhere or doing something they want to
- ask someone else to do any of the things listed above
You should not restrain the person unless:
- you believe they do not have the mental ability or capacity to make a decision about that particular issue
- you believe it is necessary to use restraint to prevent them from harming themselves
- it is a reasonable action to take (or proportionate response) because you believe they may suffer serious harm – for example, you could physically stop someone from crossing the road if they were walking into traffic, but not if it was safe for them to cross the road
Being granted property and affairs LPA for someone else
If you have property and affairs LPA, as an attorney you will be allowed to make decisions on the donor's behalf. These include:
- writing cheques and paying bills
- selling or renting property
- carrying out their trade or business
- honouring any contractual obligations
- conducting legal proceedings on their behalf
The attorney is allowed to make gifts in the following circumstances:
- on customary occasions to those related to or connected with the donor
- to any charity to which gifts had or might have been expected to be made
- as long as the value of each gift is not unreasonable in the circumstances
"Customary occasion" means, for example, a birthday, marriage or civil partnership, or any other instance where presents are commonly given within families or among friends or associates.
Registering a power of attorney
A power of attorney is only effective once it has been registered. You can register a power of attorney on GOV.UK. Either the person making the application for power of attorney (the donor) or the person who is to have power of attorney (the attorney) can apply to register the application. The fees can be processed online, but the paper-based LPA (the deed) must be sent to OPG for registration.
The applicant has to give notice to everyone named by the donor as having power of attorney. They must do this by completing and sending them the set form LPA001. The Public Guardian will notify the donor if the application is made by an attorney.
The Public Guardian must give written notice to:
- the donor, if the application is made by the attorney
- the attorney(s), if the application is made by the donor
- an attorney, if the application is made by another attorney
There is a six-week notice period, beginning on the date of the last notice, for any objections to be raised.
Once the power of attorney has been registered, the original document is returned to the applicant, and the Public Guardian also gives notice to the donor that the LPA has been registered.
Cancelling power of attorney
The donor can cancel their power of attorney at any time, even if the application has been registered. However, they must have the mental capacity to make that decision, and must tell their attorneys and the OPG 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 (depending on circumstances outlined below)
- a marriage or civil partnership between the donor and the attorney is dissolved or annulled
- the attorneys lack the mental capacity to make decisions ending personal welfare LPA
As well as the donor, the OPG can cancel registration of an LPA on factual grounds (such as the death of an attorney), and the Court of Protection can terminate an LPA for reasons such as the attorney not carrying out their duties correctly.
Ending property and affairs LPA
Property and affairs LPA is also automatically cancelled if either the donor or attorney becomes bankrupt. In the case of a trust corporation, LPA automatically ends if the trust is wound up or dissolved.
If the bankruptcy is the result of an interim (limited in time) bankruptcy restriction order, a property and affairs LPA is suspended until the order ends.
The Court of Protection can revoke an LPA if an attorney is not acting in a person's best interests and is making excessive "gifts" to themselves or others.
Ending enduring power of attorney (EPA)
To revoke an unregistered EPA, you will need to sign a formal document called a "Deed of Revocation". You may wish to seek legal advice first. You can revoke an unregistered EPA at any time while you have the mental capacity to do so.
If the EPA has been registered, it cannot be revoked except by permission of the Court of Protection.
Find out more about powers of attorney on GOV.UK.