Power of Attorney explained
We know getting a Power of Attorney can be confusing, so here's some key information to make things simpler.
What is a Power of Attorney?
A Power of Attorney (POA) is a legal document that lets a person (known as the donor) appoint one or more people (known as attorneys) to help them make decisions or make decisions on their behalf.
Depending on where you live, there are slightly different POAs:
- In England, Wales, or Northern Ireland, you will use a Lasting or General Power of Attorney.In England, Wales, or Northern Ireland, you will use a Lasting or General Power of Attorney.
- In Scotland, you will use a Continuing Power of Attorney.In Scotland, you will use a Continuing Power of Attorney.
Regardless of whether you have a Scottish or English POA, the process for getting third-party access to an account is the same. All POAs must be registered with the Office of the Public Guardian (OPG) for a fee before being used.
If someone loses mental capacity but does not have a POA, the Court of Protection will appoint a deputy to be legally responsible for them. A deputy is similar to an attorney but has more limited powers and responsibilities.
How to set up a Power of Attorney
If you are in England or Wales, you can find out how to set up a Power of Attorney here:
Make, register or end a lasting power of attorney in England or Wales.
If you are in Scotland, you can find out how to set up a Power of Attorney here:
Types of Power of Attorney (POA)
In Scotland, a Continuing Power of Attorney (CPA) allows someone to:
- take care of your day-to-day finances take care of your day-to-day finances
- pay billspay bills
- look after bank accountslook after bank accounts
- collect benefitscollect benefits
- buy or sell property.buy or sell property.
These powers can be used when someone still has mental and physical capacity, and they'll continue if someone is no longer able to manage their affairs. The CPA must be made by the person whose finances are in question, and they can choose whether the attorney has access immediately or not.
A General Power of Attorney (GPA) lets someone look after your financial affairs, whereas a Lasting Power of Attorney (LPA) allows someone to look after your affairs and can also include your personal welfare, property, and financial affairs. The main difference is that a GPA does not continue if someone loses their mental capacity, but an LPA does cover someone if they lose their mental capacity.
LPAs are used by people to protect themselves should they develop an illness which may hinder decision-making such as dementia, mental health problems, or brain injury. An LPA can only be made while someone is still capable of making decisions for themselves.
As GPAs don't cover loss of mental capacity, you might choose to set one up if you:
- have a physical illnesshave a physical illness
- are abroad for a long period.are abroad for a long period.
To set up a GPA, contact your solicitor or Citizens Advice for guidance.
You can appoint more than one attorney to act on your behalf, and the differences are as follows.
- Sole – the attorney is the only person responsible for acting on behalf of the donor.Sole – the attorney is the only person responsible for acting on behalf of the donor.
- Joint – the attorneys must all sign for transactions and make joint decisions. They cannot act independently of each other, and all attorneys will need to write to us to carry out any transaction. Furthermore, they will not be able to manage your account by phone. If one attorney decides they can no longer act, becomes bankrupt, mentally incapable, or dies, the POA becomes invalid and a new POA must be set up.Joint – the attorneys must all sign for transactions and make joint decisions. They cannot act independently of each other, and all attorneys will need to write to us to carry out any transaction. Furthermore, they will not be able to manage your account by phone. If one attorney decides they can no longer act, becomes bankrupt, mentally incapable, or dies, the POA becomes invalid and a new POA must be set up.
- Jointly and severally – attorneys can make decisions on their own or with other attorneys. Jointly and severally – attorneys can make decisions on their own or with other attorneys.
Guidance for Power of Attorneys
Managing financial affairs
You should always manage finances in the donor’s best interests. Attorneys must keep accounts of the donor’s assets, income, spending, and outgoings. The Office of Public Guardian (OPG) and the Court of Protection can ask to check these records. Those accounts should include copies of bank statements, and we are happy to help with this by sending relevant statements when required.
Restrictions and Clauses
When a Power of Attorney is set up, the donor may add restrictions or clauses to limit what you can do when managing finances. It is the attorney's responsibility to keep to these restrictions or clauses when acting on the donor's behalf.
External support
The following independent, third-party organisations can be contacted for advice and information:
Office of Public Guardian information (England)
Office of Public Guardian information (Scotland)
Office of Public Guardian information (Northern Ireland)