A power of attorney (POA) or letter of attorney is a written authorisation to represent or act on another's behalf in legal, financial or health affairs, or some other legal issue. For people who lack the mental capacity, or in time may become unable to make important decisions, it’s important for someone else to be appointed to do it for them.It’s why the Mental Capacity Act 2005 was introduced to enable people to choose someone to manage financial, property and even health and welfare decisions on their behalf. When the Mental Capacity Act came into force in 2007, Lasting Power of Attorney (LPA) replaced the previous Enduring Powers of Attorney (EPAs), although EPAs made before that date are still valid. EPAs only need to be registered if the Donor has since lost capacity.

Types of LPA

Property and affairs LPA- this can include collecting your income and benefits, paying your bills, as well as selling your house, subject to any restrictions or conditions you might have included. While the registration is being processed, your attorney(s) can use your finances to pay for essentials you need such food or regular bills. However, they will not be able to deal with larger transactions such as the sale of your house until the LPA has been registered at the Office of the Public Guardian (OPG).

Personal welfare LPA– this allows your attorney(s)to make decisions on your behalf about your personal welfare, for example where you live, and giving consent or refusal to medical treatment, if you’ve filled out this option on the LPA form. If you do not wish to consent to specific life sustaining treatment to be given in the future, the LPA will replace any previous advanced decision refusing treatment and give the attorney power to make that decision. A subsequent advanced decision (if applicable in the circumstances) would be binding on the attorney.A personal welfare LPA can only be used once the form is registered at the OPG and you have become mentally incapable of making decisions about your own welfare.

Who can make an LPA?

You have to be aged 18 or over to make an LPA appointing one or more people to make decisions on your behalf, and have the mental capacity to do so at the time the LPA is made.

Do I need a solicitor?

You do not have to seek legal advice but an LPA is a powerful and important legal document. So, whilst there will be costs involved, it is always a good idea to seek independent legal advice from someone with experience of preparing them.

Who can act as an attorney?

You can choose anyone you trust to act as your attorney, as long as they agree, are aged 18 or over and have not been declared bankrupt when they sign the form.

It’s okay to appoint more than one person or a replacement attorney too. If you appoint more than one person, you can choose whether they can act together or together and independently. You can state that your attorneys must act together for some decisions but for others they can act independently.

Attorney responsibilities

It’s a role that brings with it power and responsibility and you be considered carefully before entering into. Attorneys have to follow the principles set out in the Mental Capacity Act when they are making decisions or acting on your behalf. That means always acting in your best interest, considering your needs as well as past and present wishes, and taking steps wherever possible to help you still make your own decisions.

Your attorney(s) is not allowed to take advantage of your position for any personal gain. They must detail all dealings on your behalf and keep them confidential, whilst ensuring any money or property entrusted to them is kept separate from their own and from that of other people. Failure to comply could mean the LPA is canceled and in some cases the attorney may be taken to court on charges of fraud or negligence.

How do I make an LPA?

When it comes to making an LPA, there are two separate forms - one for making a property and affairs LPA, and one for a personal welfare LPA. Copies of the blank forms and explanatory leaflets can be found online at www.publicguardian.gov.uk

An LPA is only valid once you have a certificate of capacity drawn up by an independent third party. They are called a Certificate Provider. The Certificate Provider can be your solicitor, your doctor or another independent person that you have known personally for at least two years. A family member, attorney or relative of your attorney cannot be a Certificate Provider. The form has to be completed and signed in the presence of a witness and each attorney must sign to confirm they have read the form and understand the duties they will have to carry out. 

The form cannot be used until has to be registered at the OPG. There is a fee for registering each LPA, so if you are registering a property and affairs LPA and a personal welfare LPA, you will have to pay twice. Depending on your financial circumstances you may not have to pay at all. Telephone the Office of the Public Guardian and they’ll be happy to advise you.

It’s a good idea to list one or more people who you want to inform about any application to register the LPA. If none are listed then an additional certificate of capacity must be provided.

Deputies

If a person does not have an LPA in place, the Court of Protection may appoint a deputy to make ongoing decisions on behalf of a person lacking capacity. The Deputy Order will set out the extent of the powers granted to the deputy, which might relate to finances or personal welfare. This order can have a time limit on it, so it is important to check how long it lasts. The deputy has a duty to follow the key principles set out in the Mental Capacity Act and only to make those decisions authorised by the order of the Court. An application to be appointed as deputy must first be made to the Court of Protection on the relevant application form.

Applying to be a deputy can be expensive. The costs include an application fee, registration fee and a supervision fee (if it is needed).

The Office of the Public Guardian will assess each case and place it in a band where it will receive a low, medium, intermediate or high level of supervision, which also affects the level of fees charged (Contact the Office of the Public Guardian for band rates). It may be possible for a deputy to recover the costs from the person they have been appointed to make decisions for. Fees may also be waived or reduced for people on a low income.Responsibility for the supervision of deputies lies with the Office of the Public Guardian.

About The Office of the Public Guardian

The Office of the Public Guardian (OPG) is headed by the Public Guardian who is responsible for all aspects of maintaining the register of LPAs, including dealing with objections.The OPG will also deal with any issues (including complaints) about the way in which an attorney is exercising their powers.

The Court of Protection has wide powers, the same as the High Court with jurisdiction in England and Wales.

It can:

• decide whether a person has capacity to make particular decisions for themselves
• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
• decide whether an LPA is valid
• remove attorneys who fail to carry out their duties
• hear cases concerning objections to register an LPA