Powers of attorney
No one knows exactly what the future holds, and for some this can seem daunting. So some people choose to make a Power of Attorney – so that if the time comes when they aren’t able to make their own decisions, they know they already have something in place to enable someone to act on their behalf. We take you through the main things that you might need to know and how the rules differ in Scotland and Northern Ireland.
What exactly is a Power of Attorney?
If you want someone to look after your affairs, you can give them Power of Attorney. A Power of Attorney is a legal document that allows someone (called the 'attorney') to make decisions and act on behalf of someone else (called 'the donor').
When might I need to make a Lasting Power of Attorney?
One type of Power of Attorney is called a Lasting Power of Attorney. You might make a Lasting Power of Attorney if you have been diagnosed with, or think you might develop, an illness which may prevent you from making decisions for yourself at some point in the future. It must be set up while you are still capable of making decisions for yourself and the document will need to be registered with the Office of the Public Guardian before it can be used.
How is it used?
You can give someone power of attorney to deal with your property and financial affairs, or your health and welfare. You can also limit them to just making decisions about certain things. For example, you could give someone the power to operate a bank account or to buy and sell property. If you want to make a Lasting Power of Attorney that only deals with certain matters, you should make sure it is drawn up very carefully so that the attorney is very clear about exactly what authority they have to deal with your affairs.
How does it differ from an Ordinary Power of Attorney or Enduring Power of Attorney?
An Ordinary Power of Attorney can only give the attorney the authority to make decisions about finances and property. This type of authority does not need to be registered with the relevant authorities in the same way that a Lasting Power of Attorney does, but it stops being valid when the donor has lost the ability to make decisions for themselves.
An Enduring Power of Attorney is the predecessor of a Lasting Power of Attorney. New ones can no longer be created, but existing ones continue to be valid. They can sometimes be used without being registered with the relevant authorities, but need to be registered if the donor has lost the ability to make decisions for themselves.
What if I don't make a Lasting Power of Attorney?
If you don't have a Lasting or Enduring Power of Attorney or you only have an Ordinary Power of Attorney and you lose the ability to make decisions for yourself, then anybody who wishes to deal with your affairs would have to apply to the Court of Protection for a Deputyship Order and then becomes 'the deputy'. This can be a fairly lengthy and expensive process, you can find more information at https://www.gov.uk/become-deputy/overview.
Can anyone be my attorney?
No. Firstly they need to be over the age of 18 (or 16 in Scotland). They also need to have ability to be able to make decisions on your behalf and they should know you well. Most people tend to choose a friend, a relative, their partner or a professional that they know such as a solicitor. It's important that you trust them, and you will need to check that they are happy to make decisions on your behalf as it can be a big job and they have a legal responsibility to ensure that they are acting in your (the donor's) best interests.
Can I have more than one attorney?
Yes. Some people appoint different attorneys for different roles – usually one to look after their financial decisions and one to look after their health and welfare decisions. If you have more than one attorney for the same role, you will need to decide whether you want them to make decisions together or separately.
How do the rules differ in Scotland and Northern Ireland?
The rules in Scotland work in a similar way to those in England and Wales. But rather than having a Lasting Power of Attorney, they have a 'Continuing Power of Attorney' – which deals with the property and financial affairs of the granter (known in England as the donor) and a 'Welfare Power of Attorney' which deals with the granter's personal welfare and healthcare. Sometimes people decide to combine both. There is no standard form in Scotland, so most people use a solicitor to draw up the Power of Attorney.
In Northern Ireland there are both Ordinary and Enduring Powers of Attorney. Both can handle financial matters, or the donor can ask them to only act on their behalf on specific matters. Like in England and Wales, an Ordinary Power of Attorney comes to an end when the donor can no longer make their own decisions. To use an Enduring Power of Attorney after someone has lost their mental capacity, it must first be registered with the Office of Care and Protection. There is also no Power of Attorney in Northern Ireland that gives attorneys the power to make decisions about the donor's health and wellbeing.
Talk to your friends and family
Creating a Power of Attorney is a big decision, so it can help to talk to friends or family about it. And if you would rather get some professional advice, your solicitor will be able to help – though they may charge a fee for their advice.
Read our Power of Attorney guide
If you want to know more, or would like to download a factsheet that includes all of this information please click here for A short guide - Powers of Attorney.