If you are ever unable to make decisions about your finances or care, who will make these decisions on your behalf? Setting up a Power of Attorney give you the greatest choice but can only be done whilst you have mental capacity.
Making decisions
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Power of Attorney
It’s a legal document that gives the power for someone (your 'attorney') to make decisions about your finance or welfare on your behalf, if you are unable to do so.
You can only set up attorney powers while you’ve got the capacity to make your own decisions, so it’s best to get it in place early on.
If a person has lost capacity then it may be necessary to apply for deputyship.
Do I need a Power of Attorney?
Many people think that if they lose mental capacity their next of kin, such as a spouse or child, will be able to make decisions on their behalf. Whilst family should be consulted in these situations, the ultimate decision will not lie with them unless you have set up a valid Power of Attorney.
What if I change my mind?
So long as you have mental capacity, you can withdraw the Power of Attorney at any point by contacting the supervisory body in your country.
Can I have more than one Attorney?
Yes, you can appoint any number of people to act on your behalf under a Power of Attorney. You will need to specify whether they are to act jointly (all in agreement) or whether there are some decisions that they can take ‘severally’ (in isolation).
How much does Power of Attorney cost?
In England and Wales, it costs around £80 to register a Power of Attorney and you can complete the forms yourself. In Northern Ireland it is around £150 to set up an Enduring Power of Attorney. In Scotland costs start from around £100. If you use a solicitor’s firm or will writing service, it will likely cost several hundred pounds.
Choosing the right type of Power of Attorney
Lasting Power of Attorney (Finance)
This gives someone permission to make decisions about your money and property, now or in future.
Lasting Power of Attorney (Health and Welfare)
This is what you’ll need, to give someone permission to make decisions about your healthcare, care arrangements and wider welfare if you aren’t able to.
In Scotland, the equivalent to a Lasting Power of Attorney is simply called Power of Attorney. It's used in a similar way and can be set up to make decisions on Finance, Health and Welfare or both.
Enduring Power of Attorney
If you live in Northern Ireland, you’ll need an Enduring Power of Attorney. This gives someone permission to make decisions about your finances if you’re no longer able to. If you live in England or Wales and set up a Power of Attorney before 2007 it will also be one of these.
Ordinary Power of Attorney
This gives someone permission to access your finances on your behalf, but only while you still have capacity to make your own decisions. If you’d like to make sure they can help even if you lose capacity, you’ll need to set up a Lasting Power of Attorney.
Powers of Attorney across the UK
The different types of Powers of Attorney across the United Kingdom.
England Wales Scotland Northern Ireland Name used for Power of Attorney Lasting Power of Attorney Lasting Power of Attorney Power of Attorney Enduring Power of Attorney Supervisory body Office of the Public Guardian Office of the Public Guardian Office of the Public Guardian Scotland Office of Care and Protection Actions Find out more Find out more Find out more Find out more How to set up a Power of Attorney
Putting Power of Attorney in place is an important; you should be aware of some things before choosing what to do:
01Choose who you’d like to act on your behalf
You can ask more than one person to be involved in making decisions for you if you’d like, and ask them to work together or separately.
02Decide what permission you’d like to give them
You can put support in place for decisions about your money and property or your health and welfare. If you’d like to make sure you’re covered for both, you’ll need to set up both Powers of Attorney.
03Apply online to register your Power of Attorney
You can complete the paperwork yourself on the government’s website. Or, if your finances are more complicated, you can ask for help from a solicitor.
How to set up a PoA in England and Wales
04Take a moment to review your other arrangements
While you’re preparing for the future, it’s a good time to make a Will or check that your existing one reflects your wishes. Having an up-to-date Will in place is the best way to make sure your assets are given to the people you want to inherit from you when you die.
Power of Attorney (POA) facts and myths
Facts
- Your Next of Kin should always be involved in making decisions on your behalf, but they’ll only have the final say if you’ve given them Power of Attorney.
- You’ll be in full control for as long as you’re able to make your own decisions, even if you’ve set up a PoA. You can end a PoA if you’re worried that the attorney may not act in your best interests now or in future.
- By the time you really need a PoA, you may not be able to make decisions. Once you’ve reached this point, you can’t set one up, so it’s better to prepare sooner rather than later.
- In England and Wales, it currently costs £82 to register a Lasting Power of attorney and you can complete the forms yourself via your government’s website.
- You can have more than one attorney, and if you do, they will need to work together to make a decision on your behalf.
Myths
- I don’t need a PoA if I have a Next of Kin.
- If I set one up, I won’t be able to make my own decisions.
- I don’t need to set one up until I need it.
- It costs thousands of pounds to set up an PoA, and I’ll need a solicitor.
- I can only have one attorney.
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Deputyship or Powers of Attorney?
If you have the mental capacity to make decisions about your own finances and welfare then you should look to set up a Power of Attorney. If you are looking to make decisions on behalf of a person who lacks capacity, then you may need to apply for Deputyship.
Wherever possible, you should try to set up a Power of Attorney in advance. Deputyship is a more lengthy and expensive process, which can take months to set up and cost thousands of pounds if you use a solicitor. Your powers are also limited by the Court of Protection and you are unlikely to be given the authority to make health and welfare decisions on behalf of the person, only finance.
How to apply for Deputyship powers
If you don’t have a Power of Attorney set up and you can’t make decisions alone, the medical and social care professionals looking after you will typically be responsible for making decisions about your health and wellbeing. They should talk to the people who know you best, but they’ll have the final say.
However, if a decision needs to be made about your finances, then it is likely that a person will need to apply for Deputyship powers in order to act on your behalf. This involves making an application to the Court of Protection. A deputyship application can take several months and be a lot more expensive than putting a Power of Attorney in place, with costs starting from around £800, increasing to thousands of pounds if you use a legal professional. There is some variation in setting up Deputyship across the UK, see further information below on the process in Scotland and Northern Ireland.
Appointeeship
If you have lost mental capacity but your income is limited to state benefits, including the State Pension, then an alternative to Deputyship is Appointeeship. This is where someone acting on your behalf can have your benefits paid to them so that they can spend this on your behalf. Appointeeship is free to set up and is arranged by the Department for Work and Pensions (DWP). The DWP will meet with you to check you need support to manage your benefits, then they’ll interview your Appointee to make sure they’re the right person to help you. Appointeeship would not be suitable if a person needed access to your savings or was required to make a decision about selling any property.
Deputyship in England and Wales
To become a Deputy for you, a person needs to know you well, show they’re trustworthy and be able to take on the responsibility.
In England and Wales, applying for Deputy powers without the help of a solicitor costs £371, plus a £100 fee for the assessment. You’ll also need to pay an annual supervision fee of either £320 or £35, which could mean an up-front cost of £791. If the court decides your case needs a hearing then there is an additional fee of £494.
You can apply to become a Deputy online.
Deputyship in all nations
Often, these powers are given to close family members, like partners or adult children. But they can also be given to wider family and trusted friends who know you well.
If someone needs to make an urgent financial decision for you, they can apply for an interim court order to give them permission to do something specific. This could include getting permission to use money in your account to pay for care costs.
Deputyship in Scotland
The equivalent to Deputy powers is called Guardianship.
In Scotland fees begin from around £200 with additional costs depending on the value of the person’s assets and the actions required.
You can read more about how to apply on the Public Guardian Scotland website.
Deputyship in Northern Ireland
The equivalent to Deputy Powers is called Controllership.
In Northern Ireland fees begin from around £500 with ongoing administrative costs.
You can read more about how to apply on The Office of Care and Protection website.
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The five principles of mental capacity
For as long as you can make your own decisions, you’re in full control of what happens with your money and your care. But if there is any doubt over your ability to make a decision you're protected by these five principles set out in the Mental Capacity Act (MCA):
01Presumption of capacity
Everyone is presumed to have mental capacity until it’s proven otherwise.
02Support to make a decision
You should be given all possible support to help you make your own decisions.
03Ability to make unwise decisions
Just because a choice seems eccentric or doesn’t make sense to someone else, it doesn’t mean it’s wrong or that you struggle to make decisions in general.
04Best interest
If you cannot make a decision yourself, the people who know you best should work together and with professionals to make sure that any decisions they make for you are in your best interests.
05Least restrictive
If you cannot make a decision yourself, any decision made on your behalf should be the one that limits your rights and freedoms the least.
Deprivation of Liberty Safeguards
If you have lost mental capacity and a best interests meeting has concluded that action is required to keep you safe, such as sedation, restraining or restricting access to who you can see, then the care home or hospital will need to apply to the local authority for Deprivation of Liberty Safeguard to give them the legal authority to take these steps. Further information on this can be found on the Mind website.
How to know if you need help to make decisions
How to know when help is needed
Being able to make and communicate decisions at the time you need to make them is called having mental capacity. It means you understand the decision you’re taking, why you need to take it, and the likely outcome.
There isn’t one single test to understand if you need help with decision-making; it depends on the situation. Choosing what to have for lunch may come easily, but bigger decisions, like whether to sell your home, may be difficult. Or maybe your ability to make decisions changes from day to day.
That’s why capacity is usually decided by the people involved at the time a decision is being made.
What help to make decisions looks like
If decisions ever need to be made for you, legal, health and social care professionals will work with the people who know you best to get it right. They’ll also work closely with anyone you’ve appointed to act on your behalf.
Example 1: help with medical choices
If a patient in hospital needs to take some medication, their doctor will ask some questions to understand if the patient is able to agree to it. If they don’t have the capacity to make a choice, medical professionals will take the decision that’s in their best interest.
Example 2: help with financial choices
When someone writes a Will, their solicitor will check they understand the consequences before setting it up.
Co-op Legal Services
The Co-op Legal Services Executor & Attorney Support Hub has more information on setting up a Power of Attorney and their regulated legal team can provide you with advice and assistance. We have an agreement with Co-op Legal Services who will offer you a 10% discount on their standard fees for setting up a Lasting Power of Attorney.
Read more
The cost of care
To make sure you're paying a fair amount for your care, and getting any financial support you may be entitled to, you should use our cost of care calculator.
Finding care
Whether you need some help at home or want to find out more about Care Homes in your area, we have information on where to search and what questions to ask.
Care needs assessment
Your local authority could help you to get the right support in place, whether you’re in need of care yourself or looking after someone else.