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 on becoming a deputy on the Gov.uk website.
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, it's good practice to appoint more than one attorney in case one of them cannot act for you in the future. 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, this is called a 'Combined Power of Attorney'. 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 (also known as General) 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.
Acting as a Power of Attorney
Talking about setting up a power of attorney is a great idea if you want to look after the interests of a loved one in the future, but it’s not an easy conversation to start.
Talk to your loved ones
Having ‘the chat’ about the future of your loved ones is one of the most tricky subjects to broach, particularly when you may be talking about the possibility of their health deteriorating.
No one wants to think about a time when they might not be well enough, or have enough ‘mental capacity’ to make decisions for themselves. But some find it comforting to know that if they are unable to look after their own affairs in the future, then something is in place that gives someone they trust permission to make decisions on their behalf.
And the reality is that the sooner you begin these conversations, the easier it is to put something in place that everyone is happy with.
It can be really difficult to keep a clear head when you are talking about something emotional, so sometimes it helps to write things down before you begin. Then you can make sure that you’ve covered everything that you need to (even if it takes a few discussions). You might want to start with:
- Why you think it’s important to have a power of attorney in place (just in case).
- What’s most important to them.
- What they would like the power of attorney to cover.
- What assets they might want you to look after in the future and where they keep records of them.
- If they are a couple: whether they have any joint assets that they might need to split in the future?
Registering and using the Power of Attorney
Many powers of attorney will need to be registered before they can be used. In England and Wales the Office of the Public Guardian offer an online service where you can register. This can take a while, so it’s worth factoring this in to your planning.
Then, each time you need to use it you’ll need to provide the document itself. This may involve:
- booking an appointment to present the power of attorney or sending it off in the post,
- bringing along your own ID, and
- using the document each time you speak to a new organisation.
If you are likely to use it fairly regularly, it’s probably worth paying for certified copies too. That way you won’t need to wait for the power of attorney to be returned each time.
Each organisation that you deal with might ask for different documentation. It’s worth keeping a note of this so that you know what you need for next time.
At Just the main things that we will need to see before we can accept the power of attorney are:
- The original copy, or an original ink certified copy.
- A relevant power of attorney.
- Proof of your identity.
All of these things can take time, so the most important thing to remember is it’s unlikely that you’ll be able to use a power of attorney straight away. Be patient, keep really good records, and consider getting a stock of certified copies if you are planning to use the power of attorney with several different organisations.
Power of Attorney advice and guidance
Sometimes it can become too stressful to do all of this on your own. If you find the process of drawing up a power of attorney too much, it might be worth paying a solicitor who can do it for you and help you to navigate the complexities of the system. They can advise you on what the power of attorney should cover and what else you need to be aware of and may set your mind at ease when it comes to knowing that you’ve covered everything.
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