Setting up Power of Attorney (2023)

How to set up Power of Attorney

To give someone the authorityto act on your behalf, you'll need to set up a Lasting Power of Attorney (LPA) and then register this agreement with the Office of the Public Guardian (OPG).

The LPA has to be submitted by the donor (the person whose finances or health and welfare it covers) or their attorneyscan register it if the donor has lost capacity.

There are two types of Lasting Power of Attorney - property and financial affairs, and health and welfare. You can set them both up the same way, but will need to submit two applications.

You can do this yourself or get a solicitor to handle the application for you.

It's not possible to set up Power of Attorney for someone who has lost mental capacity. Instead, members of their family will have to apply to the Court of Protection to be appointed as their deputies. Find out more in our guideCourt of Protection: managing affairs without Power of Attorney.

  • If you'd like to set up a Power of Attorney, for yourself, or someone else, Which? Wills can help - find out which option is best for you

Lasting Power of Attorney forms

To register a Power of Attorney, you'll need to submit the following forms to the Office of the Public Guardian.

  • LP1F - to register a LPA for financial decisions
  • LP1H - to register a LPA for health and care decisions

You'll also need to send out form LP3 people to anyone identified as a 'person to be told'.

How do I register aPower of Attorney?

Here, we explain how to set up and register a Power of Attorney.

1. Choosean attorney to act on your behalf

In the Power of Attorney forms, you'll be asked to give details of the attorneys you wish to appoint and the capacity in which you want them to act (jointly or 'jointly and severally').

Being able to act severally means each attorney can use the Power of Attorney independently. This is a great advantage when attorneys live some distance apart.

Banks and building societies normally ask for one of the joint attorneys to be identified as the ‘lead’, but unless they can act severally, their scope for manoeuvre is severely limited

(Video) Power of Attorney -- The Basics: Do I need a lawyer?

It’s possible to impose various restrictions and conditions on your attorneys, although these may be rejected if they are unworkable.

Take care if you only appoint one attorney and they own property with you. If you lost mental capacity, your attorney would have to choose another person to act as a ‘trustee’ before the property could be sold.

2. Get signatures from certificate providers

The forms must be signed by a ‘certificate provider’ (often your doctor) who attests to your understanding (capacity), and by each of the attorneys you have chosen.

You, your attorneys and your witnesses will all need to sign the forms before they're submitted.

3. Notify 'people to be told' with LP3 forms

In the Power of Attorney forms, you'll be asked to identify 'people who need to be told' - meaning people who should know that you are planning to register a Power of Attorney.

If you've identified anyone here, make sure you send them a notification form (LP3). They have three weeks to raise any concerns with the OPG.

But you don't need to name anyone in this section if you choose not to (and your relatives don't have a right to be informed unless you name them).

4. SubmitPower of Attorney forms to OPG

Once the Power of Attorney forms have been signed, you need to return them to the OPG with payment.

If you've used thegovernment's online serviceto create your LPA, you'll still have to print out the forms and sign them when you are finished.

If not, you'll need to fill in sections 12 to 15 of the paper forms, and send them to theOffice of the Public Guardian.

It can take between eight and 10 weeks to register a Lasting Power of Attorney. Currently, it's taking up to 20 weeks due to delays at the OPG.

5. Registeryour Power of Attorney

Once the OPG is satisfied, it will send back a stamped copy of the Power of Attorney, showing that it has been accepted and registered.

Without the stamp of the OPG, an LPA is not valid and can't be used.

(Video) Power of Attorney Explained

You can choose who the registeredPower of Attorney is returned to, and eitherstore it for safe-keeping yourself or pass it on to your attorney.

If you have used a solicitor to make your application, they will often keep the PoA until one of your attorneys asks for it. You should obtain certified copies of the PoA, using these with banks and other institutions as required while keeping the original safe.

Although a new digital 'Use a lasting power of attorney' tool was launched in June 2020, allowing attorneys and donors to share the details of their LPAs with third parties online, in a small number of cases the physical LPA (or a certified copy of it) still needs to be shared.

  • Find out more: Power of Attorney reforms - will delays be reduced?

How much does a Power of Attorney cost?

When you return the signed Power of Attorney forms to the OPG, you’ll also need to submit payment.

The fee per Power of Attorney is £82 in England and Wales – so if you want to register a property and financial affairs LPA, and a health and welfare LPA, it’ll cost you £164.

In Scotland the fee is £81, and in Northern Ireland it’s £151.

If you earn less than £12,000, you can apply for a 50%reduction. You may also qualify for an exemption if you’re on certain benefits, such as Income Support.

Some people prefer to get their Power of Attorney prepared by a solicitor. This can prevent mistakes which sometimes cause an application to be rejected, but the cost of applying through a solicitor is considerably higher - some charge as much as £500, plus the £82 OPG fee.

  • If you'd like to set up a Power of Attorney, for yourself, or someone else, Which? Wills can help - find out which option is best for you

How do I get certified copies of Power of Attorney?

To act as an attorney, you will need certified copies of the original Power of Attorney. These are accepted by banks and other institutions and prevent any risk of the original (stamped by the OPG) getting lost.

A normal photocopy is not sufficient, unless it has been countersigned by the donor while they still have capacity. But to be valid, such copies must have the following:

  • At the bottom of each page, the donor must write: ‘I certify this is a true and complete copy of the corresponding page of the original Lasting Power of Attorney.’
  • On the final page of the copy, the donor must write: ‘I certify this is a true and complete copy of the Lasting Power of Attorney.’ Every page must be signed and dated.

Most solicitors will provide certified copies of the OPG document for a very modest charge, even if they didn't provide the original Power of Attorney.

How do I use Power of Attorney with a bank?

Most attorneys for property and financial affairs deal with the donor’s bank.

Before you can do this, you have to go through another registration process with the bank. Be aware that each bank has its own registration process, so the steps may below may not apply in all cases.

(Video) How Do I Get a Power of Attorney for My Parents?

1. Registera Power of Attorney with a bank

When you register with the donor's bank, they will need to see:

  • The original LPA document stamped by the OPG (or a certified copy, signed by a solicitor)
  • Proof of each attorney’s identity (their passport, or a driving licence)
  • Proof of each attorney’s address (a recent utility bill)

In branch, the bank takes photocopies of the Power of Attorney form and supporting documents. If there are joint attorneys, each one can normally have their documents copied separately at their local branch. If registration is done by post, everything needs to be sent - including supporting documentation.

If you are dealing with the affairs of someone with accounts at more than one bank, you will have to go through the registration process several times.

In 2018, Which? research found that many attorneys encounter problems during the registration process. So make sure you have all the documentation to hand when dealing with banks.

2. Declarethe donor's capacity

If you wish to act as someone’s Attorney with a bank, it may require you to make a declaration about whether the donor still has capacity (continuing to sign cheques and receive statements and correspondence, for example) or whether they lack capacity, in which case the attorneys take over entirely.

No medical evidence is required for this, although attorneys must report the donor’s condition accurately.

If the donor lacks capacity, they will no longer be able to issue cheques or authorise withdrawals from their account, for example. If they have capacity, but require an attorney to act on their behalf for certain transactions due to physical incapacity, for example, they can continue to make withdrawals and issue cheques independently.

Find out more:our financing later life careand end of life guides offer free, independent and practical advice about caring for older people across the UK.

3. Makingpayments with a Power of Attorney

Most banks will give you telephone and online access to the donor’s account, in addition to being able to give instructions in branch and sign cheques. This is not always the case, however, especially where the donor still has capacity.

Other points of difference include the issuing of cheque books to attorneys and the automatic forwarding of duplicate statements.

Some banks provide cheque books with the attorney’s name printed together with that of the donor, while others expect attorneys to sign cheques which bear the donor’s name. Statements are normally sent to attorneys where requested, but not all banks forward them automatically

4. Applying for accounts or credit with a Power of Attorney

Applying for a new Isa in the name of a donor is allowed by most banks, as is opening new savings accounts- so having Power of Attorney on your account doesn’t mean you have to miss out on tax-free interest or the best rates.

Borrowing is normally discouraged. Very few banks permit a Power of Attorney credit card, and the use of an overdraft facility is similarly restricted.

(Video) Dementia and Power of Attorney: Medical and Financial Power of Attorney for Dementia

The OPG has produced a guide for Attorneys in conjunction with the British Bankers Association (BBA) and the Building Societies Association (BSA).

Attorney’s duty of care

Acting as an attorney obliges you to maintain a duty of care to the donor, not to benefit yourself. It’s important to avoid any potential conflicts of interest.

Specifically, you must keep the donor’s money and property separate from your own and keep accurate accounts in all of your dealings as an attorney.

How do I cancel myPower of Attorney?

As long as the donor still has mental capacity, they can end the lasting power of attorney.

To do this, you’ll need to send the OPG the original Power of Attorney, as well as a written statement called a ‘deed of revocation’.

You can find the wording for this deed at the government’s power of attorney guide.

Scotland and Northern Ireland

The process for setting up Power of Attorney in regions other than England and Wales is slightly different.

Once your Power of Attorney is registered, the process for using it with banks is much the same as in England and Wales.

We explain the key points below.

Scotland

To register your Power of Attorney, you'll need to submit forms to the Office of the Public Guardian in Scotland - either online or via post.

You'll need to submit the PoA document, alongside the schedule 1 Certificate registration form and fee (which is currently £79).

Northern Ireland

In Northern Ireland, your Power of Attorney must be registered with the Office of Care and Protection.

You'll first need to notify certain people via an EP1 form. You can then send the signed Enduring Power of Attorney and the form EP2 to the Office of Care and Protection, along with the £151 fee.

(Video) The Responsibilities of a Power of Attorney - Interview with Lawyer Krista Clendenning

FAQs

What makes a good POA? ›

Ideally, the person you choose would be someone who isn't afraid to challenge suggestions or treatment options that go against your wishes. What's more, you want someone who is willing to research your condition and learn as much as they can about it. This type of person would make a good power of attorney.

What are two questions one should ask of their attorney? ›

Questions to Ask Your Lawyer During a Consultation
  • 1) What kind of experience do you have with similar cases?
  • 2) What would be your strategy for my case?
  • 3) Are there any alternatives to going to court?
  • 4) What are my possible outcomes?
  • 5) Who will actually handle my case?
  • 6) What is my role in my case?

Does a power of attorney have to be filed with the court in Texas? ›

You must be of sound mind and know what you are doing when you sign the power of attorney; and. If you are entrusting your agent to conduct real estate transactions for you, the power of attorney document has to be filed with the clerk of each county where the property is located.

Who is the best person to be POA? ›

Who Should Be Your Agent? You may wish to choose a family member to act on your behalf. Many people name their spouses or one or more children. In naming more than one person to act as agent at the same time, be alert to the possibility that all may not be available to act when needed, or they may not agree.

Who is the best person to give power of attorney? ›

Who Can I Name to Have Power of Attorney? You can technically name anybody to have POA, so long as it is done under your free will and you are mentally competent. 1 It should be somebody trustworthy and capable, such as a spouse, close family member, or friend. You may also designate your lawyer to have a POA.

How do you activate a power of attorney? ›

Your LPA needs to be registered by the Court of Protection before it can be activated. You have two options, you can either register the Lasting Power of Attorney as soon as it's in place and signed by you and your attorney, or leave it to be registered at a later date.

What kind of lawyer do I need for power of attorney? ›

An experienced local estate planning attorney has handled hundreds of these documents and seen a wide range of situations where a power of attorney was needed. They can offer practical legal advice.

Does power of attorney have to be registered? ›

In order for a Lasting Power of Attorney to be valid and be used by the Attorney it must be registered. When a Property and Affairs LPA has been successfully registered it can be used straight away.

What is the hardest question to ask a lawyer? ›

12 Tough Questions to Ask a Lawyer
  • What's your opinion of the probate process?
  • Under what conditions do you recommend a Living Trust?
  • How do I protect my children from abusive relatives if something happens to me?
  • Can I keep my kids from controlling their entire inheritance at 18?
Jul 10, 2016

What are some questions an attorney might ask a new client? ›

What Questions do Lawyers Ask Their Clients?
  • What is your case about? A lawyer will want to know every single detail of your case. ...
  • What do you hope to accomplish? ...
  • How do you want us to communicate? ...
  • Why did you choose me? ...
  • Are you comfortable with my rates?
Nov 28, 2019

Can two siblings have power of attorney? ›

Generally speaking, while it is good to include your spouse or siblings, consider the fact that they may not be around or have the inclination to sort out your wishes when the time comes. If possible, include two attorneys as standard and a third as a back-up should one of the attorneys not be able to act.

Does the oldest child have power of attorney? ›

The oldest child does not automatically have power of attorney. A power of attorney must be granted in a formal written document and properly executed in line with state law. The oldest child will only have the power of attorney if their parent executed a written power of attorney appointing them.

Can power of attorney keep family away? ›

An agent under a financial power of attorney should not have the right to bar a sibling from seeing their parent. A medical power of attorney may give the agent the right to prevent access to a parent if the agent believes the visit would be detrimental to the parent's health. Revoking a power of attorney.

What are the disadvantages of power of attorney? ›

What Are the Disadvantages of a Power of Attorney?
  • A Power of Attorney Could Leave You Vulnerable to Abuse. ...
  • If You Make Mistakes In Its Creation, Your Power Of Attorney Won't Grant the Expected Authority. ...
  • A Power Of Attorney Doesn't Address What Happens to Assets After Your Death.
Sep 4, 2018

What happens if no power of attorney? ›

If you lose your mental capacity at the time a decision needs to be made, and you haven't granted powers of attorney to anyone (or you did appoint attorneys, but they can no longer act for you), then the court can appoint someone to be your deputy.

Can power of attorney stop visitors? ›

I could not prevent him visiting mom - POA does not give you power stopping someone visiting.

Does power of attorney override a will? ›

Can a Power of Attorney change a will? It's always best to make sure you have a will in place – especially when appointing a Power of Attorney. Your attorney can change an existing will, but only if you're not 'of sound mind' and are incapable to do it yourself. As ever, these changes should be made in your interest.

What happens if someone has dementia and no power of attorney? ›

If you don't make an LPA and later become unable to make decisions yourself, nobody will legally be able to make decisions for you. This can make things difficult for your family as they won't be able to pay bills or make decisions about your care.

How do you prove you have power of attorney? ›

You can also confirm that a copy of your LPA is genuine by 'certifying' it, if you're still able to make your own decisions. You or your attorney can use the certified copy to register your LPA if you do not have the original document.

Does power of attorney need to be notarized? ›

A power of attorney form needs to be notarized to authenticate the identity of the person signing. Notaries play an important role when executing a power of attorney. A notary public's job when notarizing a power of attorney is centered around the acknowledgement, which is attached to the POA.

How often do you have to renew a power of attorney? ›

Once an LPA has been validly executed, it will last indefinitely unless revoked by the donor, the attorney, the Court of Protection or by operation of law.

Can you get power of attorney for someone with dementia? ›

A power of attorney for health care allows a person with dementia to name a health care agent to make health care decisions when he or she is no longer able. This type of legal document is also called an "advance directive." These decisions include choosing: Doctors and other health care providers.

How long does it take to set up a power of attorney? ›

Once the LPA is submitted, the Government says it can take up to 20 weeks to register. The power will take effect as soon as the LPA is registered, so the attorney will be able to start making decisions straightaway, unless they specify otherwise on the application. See more on this in how to make a Power of Attorney.

Can I do online banking if I have power of attorney? ›

We can't given you online and mobile banking if you have a general power of attorney.

How long does a lasting power of attorney last? ›

The lasting power of attorney ( LPA ) ends when the donor dies. You must report the death of a donor to the Office of the Public Guardian ( OPG ).

Can two siblings have power of attorney? ›

Generally speaking, while it is good to include your spouse or siblings, consider the fact that they may not be around or have the inclination to sort out your wishes when the time comes. If possible, include two attorneys as standard and a third as a back-up should one of the attorneys not be able to act.

What type of power of attorney covers everything? ›

General power of attorney

With a general power of attorney, you authorize your agent to act for you in all situations allowed by local law. This includes legal, financial, health, and business matters.

What are the disadvantages of power of attorney? ›

What Are the Disadvantages of a Power of Attorney?
  • A Power of Attorney Could Leave You Vulnerable to Abuse. ...
  • If You Make Mistakes In Its Creation, Your Power Of Attorney Won't Grant the Expected Authority. ...
  • A Power Of Attorney Doesn't Address What Happens to Assets After Your Death.
Sep 4, 2018

Can power of attorney keep family away? ›

An agent under a financial power of attorney should not have the right to bar a sibling from seeing their parent. A medical power of attorney may give the agent the right to prevent access to a parent if the agent believes the visit would be detrimental to the parent's health. Revoking a power of attorney.

Does the oldest child have power of attorney? ›

The oldest child does not automatically have power of attorney. A power of attorney must be granted in a formal written document and properly executed in line with state law. The oldest child will only have the power of attorney if their parent executed a written power of attorney appointing them.

Does the oldest child inherit everything? ›

No state has laws that grant favor to a first-born child in an inheritance situation. Although this tradition may have been the way of things in historic times, modern laws usually treat all heirs equally, regardless of their birth order.

What happens if someone has dementia and no power of attorney? ›

If you don't make an LPA and later become unable to make decisions yourself, nobody will legally be able to make decisions for you. This can make things difficult for your family as they won't be able to pay bills or make decisions about your care.

What kind of lawyer do I need for power of attorney? ›

An experienced local estate planning attorney has handled hundreds of these documents and seen a wide range of situations where a power of attorney was needed. They can offer practical legal advice.

Should everyone have a lasting power of attorney? ›

Everybody should have an LPA. While it may be true that elderly people have a greater risk of losing their mental capacity through illnesses such as dementia, younger people should not overlook the importance of LPA's and the impact that not having one could have on themselves and their loved ones.

Can a power of attorney holder sell property? ›

A person given power of attorney over a property cannot sell the asset unless there is a specific provision giving him the power, the Supreme Court has held in a judgment.

Is there an alternative to power of attorney? ›

A deputy is a similar role to that of attorney. They must follow the same principles as an attorney to make sure decisions are made in your best interests. There are two types of deputy: property and financial affairs deputy and personal welfare deputy.

Is power of attorney a risk? ›

Giving a person power of attorney would mean that the principal would be responsible for his agent's action. Power of attorney is an extremely dangerous document if not given properly. It is very easy to misuse this authority for personal gains. One must think thoroughly before giving someone the power of attorney.

What decisions Cannot be made by a legal power of attorney? ›

Are there any decisions I could not give an attorney power to decide? You cannot give an attorney the power to: act in a way or make a decision that you cannot normally do yourself – for example, anything outside the law. consent to a deprivation of liberty being imposed on you, without a court order.

Can I sell my mums house with power of attorney? ›

To reiterate, with a power of attorney property can only be sold if the subject is incapable of making a decision - but the sale must be in the subject's interests.

Does power of attorney have right to bank accounts? ›

You can give someone power of attorney to deal with all your property and financial affairs or only certain things, for example, to operate a bank account, to buy and sell property or change investments.

Does power of attorney override a will? ›

Can a Power of Attorney change a will? It's always best to make sure you have a will in place – especially when appointing a Power of Attorney. Your attorney can change an existing will, but only if you're not 'of sound mind' and are incapable to do it yourself. As ever, these changes should be made in your interest.

Videos

1. Set Up Power of Attorney with Kelly and West
(Kelly & West Attorneys)
2. Make a lasting power of attorney on GOV.UK
(Government Digital Service)
3. 3 Basics You Gotta Know About Power of Attorney
(America's Estate Planning Lawyers)
4. Powers of Attorney (Recorded Webinar)
(People's Law School)
5. Making a Lasting Power of Attorney UK
(Olivia Fenion)
6. Lasting Power of Attorney UK - A 2022 Guide
(UK Care Guide)
Top Articles
Latest Posts
Article information

Author: Laurine Ryan

Last Updated: 02/13/2023

Views: 6144

Rating: 4.7 / 5 (57 voted)

Reviews: 80% of readers found this page helpful

Author information

Name: Laurine Ryan

Birthday: 1994-12-23

Address: Suite 751 871 Lissette Throughway, West Kittie, NH 41603

Phone: +2366831109631

Job: Sales Producer

Hobby: Creative writing, Motor sports, Do it yourself, Skateboarding, Coffee roasting, Calligraphy, Stand-up comedy

Introduction: My name is Laurine Ryan, I am a adorable, fair, graceful, spotless, gorgeous, homely, cooperative person who loves writing and wants to share my knowledge and understanding with you.