What is a Power of Attorney?
A power of attorney is a legal document that allows you to appoint someone you trust to make decisions on your behalf if you become unable to do so yourself. In the UK, this is especially important for planning ahead in case of illness, accident, or loss of mental capacity. There are two main types of power of attorney: one for property and financial affairs, and another for health and welfare decisions.
A lasting power of attorney (LPA) is the most common type used for long-term planning. It enables your chosen attorney to manage tasks such as paying bills, managing bank accounts, or making decisions about your medical care, depending on the type you set up. You must have mental capacity – meaning you understand the implications – when you create an LPA.
Setting up a power of attorney is a straightforward process, but it is governed by strict rules under the Mental Capacity Act 2005. You must be over 18 and able to make your own decisions at the time of signing. The document must be registered with the Office of the Public Guardian before it can be used.
Having a power of attorney in place gives you peace of mind that your wishes will be respected and can help avoid complications for your loved ones. It is particularly relevant to those thinking about family law, or entering a marriage and civil partnership, as it ensures clear legal authority for important decisions should circumstances change.
Understanding Mental Capacity
Mental capacity is a legal term that describes a person’s ability to make their own decisions. In the UK, this is defined and protected by the Mental Capacity Act 2005, which sets out who can make decisions for someone who is unable to do so themselves and how these decisions should be made.
A person is considered to have mental capacity if they can understand, retain, and weigh up information needed to make a decision, and then communicate their choice. Mental capacity can change over time and may depend on the specific decision to be made. For example, someone might be able to decide what to eat for lunch but not manage complex financial matters.
For a power of attorney to be valid, the person granting it (the ‘donor’) must have mental capacity at the time they create the document. If they later lose capacity, the power of attorney allows a trusted person (the ‘attorney’) to make decisions on their behalf. Assessing whether someone has capacity is a careful process, and professionals often follow guidance such as the capacity assessment provided by The Law Society.
The law is designed to protect the rights of people who may lack capacity. All decisions made on their behalf must be in their best interests, and any actions taken should be the least restrictive option. There are also safeguards in place to prevent abuse and ensure that a person’s wishes and feelings are respected as much as possible.
How Power of Attorney Works with Mental Capacity
When someone creates a power of attorney, they appoint a trusted person (the "attorney") to make decisions on their behalf if they become unable to do so themselves. In England and Wales, this is often done through a Lasting Power of Attorney (LPA) under the Mental Capacity Act 2005. An LPA only comes into effect for decision-making when the person (known as the "donor") loses mental capacity, meaning they can no longer understand, remember, or weigh up information needed to make certain choices.
Before losing mental capacity, the donor can continue to make their own decisions. However, if capacity is lost – whether gradually due to conditions like dementia, or suddenly after an accident – the appointed attorney steps in. From that point, the attorney is legally required to act in the donor’s best interests, following principles set out in the Mental Capacity Act. This includes considering the donor’s past and present wishes, consulting with family and professionals, and making decisions that least restrict the donor’s rights and freedoms. For more on the legal process for determining and acting in someone’s best interests, see this detailed overview.
Attorneys can make a wide range of decisions, depending on the type of power of attorney in place. With a property and financial affairs LPA, attorneys can manage bank accounts, pay bills, sell property, and handle investments. A health and welfare LPA allows attorneys to make choices about medical treatment, care arrangements, and daily routines. It’s important to note that attorneys must always act within the scope of their legal powers and cannot make decisions that go beyond what the LPA allows.
If there is no Lasting Power of Attorney in place when someone loses mental capacity, family members may need to apply to the Court of Protection to be able to make decisions, which can be a lengthy and costly process. Planning ahead with a power of attorney helps ensure that your wishes are respected and that important decisions can be made smoothly if you are unable to make them yourself.
Types of Decisions Covered by Power of Attorney
When someone creates a power of attorney, they give another person (known as the attorney) the legal authority to make certain decisions on their behalf. These decisions generally fall into two main categories: financial matters and health and welfare issues.
Financial Decisions:
A power of attorney for financial affairs allows the attorney to manage everyday money matters. This can include operating bank accounts, paying bills, collecting pensions, and handling investments. It may also cover managing property or dealing with financial and insurance decisions for elderly people. Attorneys might also assist with government benefits, including disability benefits such as PIP and DLA, ensuring payments are managed correctly.
Health and Welfare Decisions:
A health and welfare power of attorney covers choices about medical treatment, daily care, and living arrangements. This means attorneys can help decide where someone lives, what kind of care they receive, and even consent to or refuse certain types of medical treatment, but only if the person lacks mental capacity at the time the decision needs to be made.
Legal Responsibilities:
Attorneys must always act in the best interests of the person they are representing, following the rules set out in the Mental Capacity Act 2005. They are required to consider the person’s past and present wishes and feelings, and involve them in decisions as much as possible. In cases where there is disagreement or uncertainty, the Court of Protection may become involved to resolve issues or appoint someone suitable.
Planning Ahead:
It is important to plan for both financial and health-related decisions when setting up a power of attorney. By doing so, you ensure that your wishes are respected and that someone you trust is able to act on your behalf if you become unable to make decisions in the future.
Creating a Power of Attorney: What You Need to Know
Creating a power of attorney is an important step in planning for the future, especially if you are concerned about losing the ability to make decisions due to illness or injury. In the UK, the most common type is a Lasting Power of Attorney (LPA), which is governed by the Mental Capacity Act 2005. An LPA lets you (the ‘donor’) appoint one or more trusted people (‘attorneys’) to make decisions on your behalf if you become unable to do so.
Steps to Set Up a Lasting Power of Attorney
- Decide Which Type of LPA You Need: There are two types – one for health and welfare, and one for property and financial affairs. You can choose either or both.
- Choose Your Attorneys: Select people you trust, such as family members or close friends. Consider their reliability, understanding of your wishes, and ability to act in your best interests.
- Complete the LPA Forms: These forms set out who your attorneys are and what powers they will have. Guidance on completing the forms and the legal requirements can be found in resources like Lasting Power of Attorney (LPA) | Practical Law.
- Sign and Witness the Forms: The LPA must be signed by you, your attorneys, and witnesses. A ‘certificate provider’ must also confirm you understand what you are signing.
- Register with the Office of the Public Guardian (OPG): The LPA must be registered with the OPG before it can be used. This process can take up to 20 weeks.
Costs and Timeframes
The standard fee to register each LPA is £82, but fee reductions or exemptions may apply in certain circumstances. Registration can take several weeks, so it’s best to plan ahead.
Reviewing or Updating Your Power of Attorney
It’s wise to review your LPA if your circumstances change – for example, if your relationship with an attorney changes or if they are no longer able to act for you. While you cannot amend an LPA after it’s registered, you can revoke it and create a new one if needed.
For more details on the legal framework and your rights, you may wish to refer to the full text of the Mental Capacity Act 2005.
Using a Power of Attorney When Mental Capacity is Lost
When someone loses mental capacity, a power of attorney allows their chosen attorney(s) to make decisions on their behalf. For a Lasting Power of Attorney (LPA) to be used, it must be registered, and the person (known as the donor) must no longer be able to make decisions themselves, as defined by the Mental Capacity Act 2005.
Once acting, attorneys have a legal duty to always act in the donor’s best interests, follow any instructions set out in the LPA, and consider the donor’s wishes and feelings as much as possible. Attorneys must keep the donor’s finances separate from their own and keep clear records of all decisions made.
If the donor regains mental capacity, they can resume making their own decisions. In this case, the attorney’s authority is suspended until, or unless, the donor loses capacity again.
The Office of the Public Guardian oversees attorneys, ensuring they act properly and investigating any concerns about abuse or mismanagement. For more information about the OPG’s role, visit the Office of the Public Guardian.
If someone loses mental capacity without a lasting power of attorney, managing their affairs becomes more complicated and may require a court-appointed deputy. Planning ahead with an LPA can help avoid these difficulties.
Abuse of Power of Attorney
When someone is given power of attorney, they are trusted to make important decisions on behalf of another person. Unfortunately, this power can sometimes be misused. Abuse of power of attorney happens when the appointed person acts outside their authority, makes decisions that are not in the donor’s best interests, or uses the role for personal gain.
Common signs of abuse include unexplained changes to finances, sudden alterations to wills or property, and isolating the person from family or professionals. The law in England and Wales, including the Mental Capacity Act 2005, provides protections for vulnerable people and sets out clear duties for those with power of attorney. If you suspect someone is misusing their authority, there are legal steps you can take to report and stop the abuse.
To learn more about what counts as abuse, the warning signs, and the legal safeguards in place, visit our page on abuse of power of attorney.
Power of Attorney and Related Family Law Issues
When a parent loses mental capacity, a power of attorney can play a crucial role in managing important family matters. For example, if a parent is unable to make decisions about where their child should live or who should care for them, the appointed attorney may need to help with child arrangements. These decisions are guided by the principles set out in the Children Act 1989, which prioritise the child’s welfare.
Managing financial responsibilities is another key aspect. If someone loses capacity, their attorney may need to handle ongoing payments and obligations, such as child maintenance. This ensures that children continue to receive the financial support they need, and that legal obligations are met.
Divorce or separation can also raise questions about powers of attorney. During divorce and separation, it is important to review and, if necessary, update any existing powers of attorney. This helps ensure that the right people are authorised to make decisions about property, finances, or ongoing care, especially if relationships or family circumstances have changed.
For those experiencing domestic abuse, appointing a trusted attorney can provide additional protection and support. The Domestic Abuse Act 2021 offers further legal safeguards, and choosing someone trustworthy to act as attorney can help prevent further harm or exploitation.
Powers of attorney are just one part of the wider family law landscape. The legal framework for mental capacity and decision-making is set out in the Power of Attorney Act 2005, which ensures that the best interests of those who lack capacity are protected across all areas of family life.
Planning for the Future: Powers of Attorney, Wills, and Estate Administration
Planning ahead is essential to ensure your wishes are respected and your loved ones are protected if you lose mental capacity or pass away. A power of attorney is a key part of this process, allowing you to appoint someone you trust to manage your financial or health affairs if you are no longer able to do so yourself. This legal arrangement is governed by laws such as the Power of Attorney Act 1971, which sets out the rules for creating and using powers of attorney in the UK.
While a power of attorney is effective during your lifetime, it does not give your attorney authority to manage your affairs after your death. That responsibility falls to the executors named in your will. Making a valid will, in line with the Wills Act 1837, ensures your estate is distributed according to your wishes and can help avoid disputes or delays.
By putting both a power of attorney and a will in place, you make it much easier for your family to manage your affairs, both before and after your death. This careful planning can prevent confusion and reduce the risk of difficulties when it comes to estate administration after you pass away.
To learn more about the importance of planning for the future and how to ensure your wishes are respected, see our section on wills and death.
