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End-of-life planning confronts us with all kinds of questions, some of which are easier than others to answer. One such question concerns how to set up a Power of Attorney. This question is laden with emotional connotations, and poses the possibility of protracted and intimidating admin. We have written this article to give you some pointers on how to set up a Power of Attorney; the different types of Power of Attorney that exist in the UK; and the costs and paperwork involved.
We’d also just like to say that, if you’re reading this, you may be confronting the possibility of setting up a Power of Attorney over a loved one whose mental capacity or health may be in decline. Or you may be thinking ahead to a day when it could happen to you yourself. We’d like to acknowledge the potential difficulty of this at the outset, and we hope you find the information in this article helpful at this time.
Power of Attorney is a document that grants someone authority over the affairs of another person. It can relate to medical matters, such as how they should be treated or whether there is a Do Not Resuscitate (DNR) Order in place. Or it could concern financial matters, such as whether to sell property in order to fund care. The question of Power of Attorney often arises in connection with Dementia and End of Life, as it can be an option that families use to resolve the problems that arise when a loved one begins to lose their mental capacity.
Powers of Attorney can be general, enduring, or lasting, with each having a different application process and intended purpose. Thinking about how to set up a Power of Attorney is a significant part of end-of-life planning in any case. Generally, in order to grant someone else Power of Attorney preemptively, you need to be 18 years of age or older, and you need to have full mental capacity at the time you are donating the power. However, there are some cases where a Court of Protection can step in to grant this where these conditions are not met.
There are various types of Powers of Attorney in the UK: Ordinary, Lasting, and Enduring. Each has a different remit and purpose.
An Ordinary Power of Attorney (or General Power of Attorney) is intended to grant someone the power to decide and act on your financial affairs on a temporary basis. The key thing here is that, for it to be in effect and valid, you need to be deemed to have mental capacity. If you lose your mental capacity, for instance through a cognitive degenerative disease or a medical emergency, then it will automatically be revoked.
It tends to be used by people who foresee a period where they won’t be able to keep a close eye on their financial or property affairs, but where they may have some important matters to attend to. For instance, they could be going on holiday, travelling, or they may be scheduling some time off to manage health matters, or to deal with grief if they have recently been bereaved. Unlike with other Powers of Attorney, there is no requirement for an OPA to be registered with the Office of the Public Guardian before it is valid.
Lasting Power of Attorney (LPA) is the most wide-reaching kind available within the UK. It is split into two kinds:
In England and Wales, you can choose to give either type of Power in your application, or both, depending on your preferences. In Scotland there is a different process. In simple terms, it works like this:
The LPA is not valid until it is registered with the OPB, which, assuming there are no mistakes in your application, could take 8-to-10 weeks to complete. If there are mistakes, it will take longer. There is also a fee of £82 to apply, but depending on your circumstances you may be able to have it waived or reduced.
LPA for Health and Welfare is only valid once the donor of the Power is deemed to no longer have the mental capacity to make their decisions, under the Mental Capacity Act (MCA). Whereas LPA for financial matters is valid from the moment it is granted, whether or not you have mental capacity. For this reason, choosing your Attorney(s) is a very important matter, and should be given lengthy consideration.
Enduring Powers of Attorney (EPA) were superseded and replaced by LPAs in 2007. They had a narrower scope than LPAs, focussing mainly on decisions which relate to the financial affairs of the subject. Some EPAs may remain in effect today as long as they were initiated before 2007. You can replace your EPA with an LPA whenever you like.
There are a couple of key steps to get right when you want to set up a Power of Attorney. You’ll need to know whether the donor wants to give partial or full Lasting Power of Attorney, or whether they only need something more general; the Attorney(s) will need to be selected; the application forms will need to be completed; and the Power of Attorney will need to be registered.
Ask yourself what your needs are, or what the needs of your loved one are. Do they now need, or are they likely in the future to need full decision-making power ceded to another person? If so, then a full LPA might be for the best. However, in other cases, either only medical decisions or financial decisions will need to be made by another, in which case a partial LPA may be more suited. It really depends on the preferences and circumstances of each individual; whether or not they are currently in the grip of a declining mental capacity or an illness rendering them temporarily incapacitated.
If you are simply interested in making sure that your financial affairs are not neglected during some sort of foreseen absence of yours, such as a holiday or health leave from work, then a General Power of Attorney is more applicable for you than other, more durable forms. Ultimately, it will depend on whether you want to offer or take Power of Attorney because of a current or anticipated loss of mental capacity, or whether you are currently in full possession of your critical faculties and don’t foresee that changing in the near-to-medium term.
It would be wise to choose your attorney(s) very carefully. You can, to keep it simple, select only one Attorney, vesting them with full power over the affairs that you specify. However, you may also wish to appoint more than one Attorney. In doing so, you can also specify whether they will be able to make decisions independently of one another, or whether they will need to confer with one another before acting on your behalf.
Both approaches have advantages and disadvantages, and will be more important depending on your needs. If you want to make sure that there will always be someone on hand to make quick decisions about your healthcare when you no longer can, then having multiple, independent Attorneys, such as your children, could act in your best interests, as there will always be a higher chance of having a decision maker present. Whereas if your financial interests require stewardship, but, with one eye on your estate and the importance of writing a will, will impact more than one of your children, then it could be more secure to have multiple Attorneys there who need to come to a shared decision.
Much like having a nominated representative with a funeral plan, your Attorneys should be trusted people who know how you would act if you were able. They should also be trustworthy people who you know will not take advantage of you should your mental capacity reduce in the future.
In order to donate Power of Attorney to someone whom you trust you will need to apply to the UK or Scottish governments by filling in the relevant forms. You can source the form for your needs by heading to the UK Government website, or by contacting the Office of the Public Guardian, where most Powers of Attorney need to be registered in order to be valid.
On the forms, you will need to list some key details about who you are choosing as an Attorney. The UK Government gives some guidance about who they can be, and about how to choose them. In general they will need to be:
Your Attorney(s) doesn’t even need to be British or based in the UK. They simply need to be one of the above, and to have mental capacity. In your application you will also need to define the scope of their authority, e.g., whether it extends to every facet of your finances, or only specific areas.
The UK government also advises thinking about the following before appointing someone:
It might be helpful to read about an attorney’s responsibilities to help you with your decision.
Before a Lasting Power of Attorney is valid (remember, this is not the case for a General or Ordinary Power of Attorney), it must be registered with the Office of the Public Guardian (OPG).
It’s very important to set your expectations appropriately by understanding ahead of time that an error free application takes up to 10 weeks to clear. If there are errors to see to, then there could be delays. For that reason, when considering how to apply for Power of Attorney, it’s important to leave as much time as you can. You may also wish to track your application so that you can at least see its progress as it wends its way through the system.
It’s important to bear in mind the costs associated with setting up a Power of Attorney, which could be of a one-off or an ongoing nature depending on how you decide to apply for and execute the process.
The registration process for setting up a Lasting Power of Attorney with the UK Government is £82. Based on your financial situation, it may be possible to have this expense reduced or waived entirely. You may wish to check the UK Government website for up-to-date pricing information.
If you are donating Power of Attorney to your solicitor, you may face higher costs. They may offer you the service of completing the application process for you (other than any signatures you need to provide), which will come at an extra cost. Vesting your solicitor with Lasting Power of Attorney, depending on your needs, could cost over £1,000. Therefore, this option may not be available to everybody, so you will have to decide whether any guidance which they can offer you is worth the fee.
Before you can use a Power of Attorney, you will need to know when it takes effect; what your responsibilities will be as an Attorney; and some common scenarios in which you might use Power of Attorney.
A General or Ordinary Power of Attorney is valid from the moment that you sign the document outlining the remit of the Power. It will cease to be valid should you be deemed to have lost your mental capacity, or should you revoke it. You can revoke it by making a Deed of Revocation and by notifying the Attorney. Similarly, if you die, or the Attorney dies, the Power of Attorney will automatically expire.
LPA – Medical
A Lasting Power of Attorney for medical and treatment purposes is usually donated preemptively by the subject prior to a time where they may lose mental capacity. This Power will come into effect for the Attorney(s), within the confines of the Power donated, when the donor loses their mental capacity. It will cease to exist when they die, or should they recover their mental capacity. It can be revoked at any time before it is registered with the Office of the Public Guardian (OPG) in the same way that a General Power of Attorney can be revoked. Otherwise you will need to apply for a revocation from the OPG. In order to do this you will need the original LPA, a deed of revocation, and you will need to have mental capacity to act.
LPA – Financial
A financial LPA can be used by your Attorney(s), with your permission from the moment it is registered. It can be revoked in the same way as a medical LPA can be revoked. Here are some other circumstances in which a financial LPA could come to an end:
If your attorney:
It will also end if you die.
If someone wants you to donate a Lasting Power of Attorney to you, whether for health or financial matters, the first thing you should do is talk to them to get a sense of their priorities. This may require you to talk about death and dying, which, depending on your relationship with the donor, could be tricky. In general, you could start by asking them what their plans are for their money, or how they would like to be cared for. You will have a legal responsibility to act in the best interests of the donor, particularly if they no longer have mental capacity, so gathering as much information as you can may prove helpful. You will also need to talk to them to get their perspective, where possible, before making any relevant decisions.
Once you are confirmed as their attorney, you will need to:
Any decisions made in connection with the LPA must be made by the attorney – they can’t delegate this responsibility to someone else. In particular, when making financial decisions, you will need to keep an accurate and detailed record for accounting purposes.
Much like what happens to bank accounts when someone dies, the Attorneys may close the bank accounts or transfer funds into and out of them should it be needed for things like paying bills. They may need to make other financial decisions, such as whether to sell property or other assets in order to fund healthcare or treatment.
For health-related LPAs, the Attorney may have to consent to medical treatment on behalf of the donor, or refuse it, in line with what they know to be their likely wishes on the subject. As such, they will need to consult with medical professionals.
Setting up a Power of Attorney can be a drawn-out and time-consuming process.
Many people consider it important to secure their decision-making capacity through a trusted third-party by setting one up in advance. Its main aim is to avoid the scenario of having our affairs paralysed by stasis, or influenced in a way we wouldn’t agree with – a scenario many of us consider to be a nightmare. Putting in a provision for a Lasting Power of Attorney, of either a medical or financial nature, gives us peace of mind. Should something unexpected happen, the wheels will keep turning as far as possible according to our own preferences.
A power of attorney cannot be set up after the would-be donor has lost mental capacity to act or decide things for themselves. At this point, it is too late, and any decisions about your health will need to be made in conjunction with the Mental Capacity Act 2005. The would-be donor’s family will likely need to apply to the Court of Protection to be made into deputies capable of making health and financial decisions. However, this is a time-consuming and often expensive process, which means that certain financial affairs or decisions which need timely action may go untended or unmade.
Proactive planning for the eventuality of needing to donate or receive Power of Attorney can save a lot of money, time, and heartache for all involved further down the line.
Here are some common FAQs about setting up a Power of Attorney.
Before a Lasting Power of Attorney can be successfully donated and used, it needs to be registered with the Office of the Public Guardian (OPG). Assuming the application is error-free, this could take up to 10 weeks. But, if there are omissions, errors, or anything else which needs to be rectified or clarified, it can take even longer. If you’re interested in establishing a fail-safe through Power of Attorney, make sure to leave yourself as much time as possible.
Yes, you can. A General or Ordinary Power of Attorney can be revoked by writing a Deed of Revocation and providing it to the Attorney to whom you donated Power in the first place. A Lasting Power of Attorney can be revoked at any time before it is registered with the OPG, assuming you are deemed to have mental capacity. If it has already been registered, and if you have mental capacity, you can revoke it by applying to the OPG, submitting the original LPA document, a Deed of Revocation. If you lose mental capacity whilst Power of Attorney has been donated and registered, you will no longer be able to revoke it.
Without having made provision for the donation of Power of Attorney, and you lose mental capacity, your family may face difficulty. They will need to apply to the Court of Protection for deputyship in order to take control of your medical and financial affairs, which can be a lot more time consuming and expensive than setting up POA. It will also likely be a more high-stakes situation, as you will already have lost mental capacity, and so your affairs may risk falling into disarray in the meantime. This can be very stressful for your family, and, should you recover your mental capacity, difficult for you too.
We hope that you have found this article about how to set up a Power of Attorney useful. It can be a confusing and emotionally charged subject to grapple with. Few of us want to imagine a day where we’ve lost our liberty, but it can be helpful to do so in advance, and to put a plan in place, so for our own sake. The same can be said for funeral planning, which is another big part of the end-of-life planning jigsaw. Aura is there to help you get a funeral plan in place, with its top-rated direct cremation options, if that’s what you’d like.
Aura is the top-rated national provider of ‘Cremation Services’ on consumer review site, Trustpilot, with a score of 4.9/5 stars. We offer our prepaid funeral plans to all who need them, with every family benefiting from the industry-leading, compassionate care of our Aura Angels. When you’re no longer here, they’ll be there to lead your family by the hand through all the difficulty of funeral arranging. They’ll support them with the admin, logistics, and even lend an ear should they need to talk about what they’re going through. They will make sure that you get the send-off you deserve.
Why not download our Funeral Plan brochure today, to see how we can help? We’d be delighted to hear from you should you have any questions.
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