Making decisions
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 gives you the greatest choice but can only be done whilst you have mental capacity.
Power of Attorney
It’s a legal document that gives the power for someone to make decisions about your finance or welfare on your behalf, if you are unable to do so. This person is known as your attorney.
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, 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 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 £92 to register a Power of Attorney and you can complete the forms yourself. In Northern Ireland it is around £180 to set up an Enduring Power of Attorney. In Scotland costs start from around £96. 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 required for someone 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 |
| 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:
- Choose 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. - Decide 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. - Apply 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. - Take 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
Myths
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 limited by the Court of Protection and you are unlikely to be given the authority to make health and welfare decisions.
How to apply for Deputyship powers
If you don’t have a Power of Attorney and lack capacity, your health and care professionals will make decisions about your health and wellbeing. They should talk to the people who know you best, but they’ll have the final say.
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.
Deputyship can take longer and cost more than setting up a Power of Attorney in place. Costs starting from around £800, increasing to thousands of pounds if you use a legal professional. The process varies 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, Appointeeship may be an alternative to Deputyship. 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, 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 £421, plus a £100 fee for the assessment. You’ll also need to pay an annual supervision fee of either £320 or £35. If the court decides your case needs a hearing then there is an additional fee of £259.
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 for this authority. 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.
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):
- Presumption of capacity
Everyone is presumed to have mental capacity until it’s proven otherwise. - Support to make a decision
You should be given all possible support to help you make your own decisions. - Ability 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. - Best interest
If you cannot make a decision, the people who know you best should work with professionals to make sure decisions taken are in your best interests. - Least 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 lack the mental capacity to consent to care or treatment, a Deprivation of Liberty Safeguard may be applied for by your care home or hospital. This gives the authority for actions to be taken to keep you or others safe, such as using restraints or sedation. Further information on this can be found on the Mind website.
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. 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.