What is power of attorney?
On this page, we’ll share more detail about what this document means, and we’ll also take you through the steps you need to take to set up your own power of attorney.
Setting up a power of attorney
Over time, people who are terminally ill can often become too sick to make decisions for themselves. Before it gets to that point, they can create a lasting power of attorney to allow someone else to make those decisions on their behalf.
In England and Wales, there are two types of lasting power of attorney, and you can set up one or both of them.
- A property and financial affairs lasting power of attorney: this lets someone manage all financial affairs - for example, running bank and savings accounts, paying bills, and collecting benefits or a pension. It can be used as soon as it’s registered, with permission.
- A health and welfare lasting power of attorney: this lets someone make decisions about health, care, and welfare - for example, daily routines (e.g. washing, dressing, or eating), medical care, and life-sustaining treatment. It can only be used when someone is unable to make their own decisions.
The person giving power of attorney is known as the "donor". The person or people who will manage any finances or make decisions about care are called "attorneys", and they’re usually family members or close friends.
Why do I need a power of attorney?
When you have a life-threatening illness, it can be helpful for you and your loved ones to think ahead and plan for the future. Whether you need to give someone power of attorney is entirely up to you. Many people find it reassuring to know that a person they trust will be able to make decisions for them if they become too unwell.
For example, a lasting power of attorney for someone with dementia can be especially helpful, as their illness will increasingly affect their ability to understand things and make decisions.
You can record some health and care preferences in an Advance Care Plan, but these only apply to specific treatments and circumstances. This means there may still be some decisions to make which aren't covered by the plan.
An Advance Care Plan can advise people involved in your care so that they can make the decisions that they believe are in your best interests and reflect your wishes. But if someone has power of attorney, that person can make decisions on your behalf.
When should a power of attorney be set up?
Having a terminal illness is incredibly tough, and there’s often a lot to think about. If you plan to make a lasting power of attorney, it’s generally better to do this sooner rather than later. This is because it can only be set up when someone has the mental capacity to make their own decisions. In this instance, "mental capacity" means that you can understand information, and make and communicate your decision.
By the time someone needs end-of-life care, they may be too unwell to set up a power of attorney. Their family or friends may then look into how to get power of attorney and find it’s too late, so it’s important to think about this before your illness progresses.
The power of attorney will usually only come into force once it has been registered with the Office of the Public Guardian (OPG). This takes up to 20 weeks from when your application is received, so it’s important to bear this in mind in case your condition changes suddenly.
Setting up a lasting power of attorney doesn’t mean giving up control, as a welfare attorney can only act when you can no longer make decisions for yourself. If you change your mind, you can cancel it by notifying the attorneys and OPG, as long as you still have mental capacity.
What happens if I don’t set up a power of attorney?
If someone has lost capacity (i.e. the ability to make decisions for themselves), and they haven't set up a power of attorney, things become more complex. Although your family or close friends can no longer get power of attorney, someone close to you can submit an emergency application to the Court of Protection. If this is approved, they will be appointed as a deputy with the power to make decisions on your behalf.
How do I set up lasting power of attorney?
There are three key steps in setting up a lasting power of attorney:
1. Choose an attorney or attorneys
This can be anyone over the age of 18 and should be someone you trust to understand and respect your wishes and make the best decisions for you. Most people choose their husband, wife, partner, other family member or close friend.
You can choose more than one attorney, but you’ll need to say whether they must make decisions together or can do so on their own. It’s also important to make sure that each person agrees to be your attorney before you name them.
2. Complete the forms
In England and Wales, the forms and guidance you need are available on the GOV.UK website. You can fill out an application form online and then print it, download a form from the website, or request one in the post. In some cases, your solicitor may be able to visit you at home and help you to draw up a lasting power of attorney.
The forms will need to be signed by you, the attorney(s), witnesses, and someone who can confirm you know what you’re doing and aren’t being forced. You’ll also need to notify specific people that you’re making a power of attorney, using forms that are part of the application pack.
3. Register a lasting power of attorney
Lasting power of attorney must be checked and registered with the OPG before any attorney can make decisions. You can do this by sending them the completed forms.
In England and Wales, there is a fee of £82 for registering a financial or welfare power of attorney or £164 for both.
Each organisation an attorney deals with, such as a bank, pension provider, or mortgage company, will need to see either the original power of attorney or a "certified" copy signed by a solicitor.
If you registered with the OPG on or after 1 January 2016, you can use the "Use a lasting power of attorney" online service to access a digital version of the lasting power of attorney. You can find out more about how to do this on GOV.UK.
Does power of attorney end at death?
Yes, a lasting power of attorney ends when someone dies. After that, what happens to their affairs will be decided by what it says in their Will if they have one. This means it’s a good idea to make a Will too.
Your Will tells everyone what you want to happen to your money, possessions, and property after you die. It can help ensure that your family is provided for and your wishes are respected. We've got more information about what you need to do to make a Will.