Powers of attorney

Standard Note: SN/HA/3898

Last updated: 5 December 2012
Author: Catherine Fairbairn
Section Home Affairs Section

A power of attorney is a deed by which a person (the donor) authorises another person (the
attorney, sometimes called the donee) to act on behalf of the donor. It is not a document
which can be applied for by one individual on behalf of another.

An ordinary power of attorney automatically comes to an end as soon as the donor becomes
mentally incapable.

The Mental Capacity Act 2005 created a new form of power of attorney, the lasting power of
attorney (LPA). The relevant provisions were implemented on 1 October 2007. There are
two types of LPA: a Property and Financial Affairs LPA under which a donor may authorise
an attorney to make decisions on the donor’s behalf in relation to financial matters; and a
Health and Welfare LPA which enables a donor to authorise an attorney to act in relation to
health and welfare matters after the donor has lost mental capacity.

Until 1 October 2007, it was possible to create an enduring power of attorney (EPA). An
EPA may authorise an attorney either to act with immediate effect in relation to the donor’s
property and financial affairs and to continue to act after the donor has become mentally
incapable; or to act as attorney only after the donor has lost mental capacity. EPAs could not
authorise an attorney to make decisions on health and welfare matters. It has not been
possible to create a new EPA since 1 October 2007. However, properly executed EPAs
made prior to 1 October 2007 continue to be valid.

Contents

1 Ordinary powers of attorney 2

2 Lasting powers of attorney 2

3 Enduring powers of attorney 4

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and is not intended to address the specific circumstances of any particular individual. It should
not be relied upon as being up to date; the law or policies may have changed since it was last
updated; and it should not be relied upon as legal or professional advice or as a substitute for
it. A suitably qualified professional should be consulted if specific advice or information is
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This information is provided subject to our general terms and conditions which are available
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1 Ordinary powers of attorney
An ordinary power of attorney is a deed by which a person (the donor) authorises another
person (the attorney) to act on behalf of the donor. The power can be general or limited. A
general power of attorney authorises the attorney to do anything which the donor could have
lawfully done. A limited power confers authority only to deal with specified matters or to act
for a specified time.

An ordinary power of attorney automatically comes to an end as soon as the donor becomes
mentally incapable.

2 Lasting powers of attorney

The Mental Capacity Act 2005 (the Act) created a new form of power of attorney, the lasting
power of attorney (LPA). It was not possible to make an LPA until 1 October 2007. There
are two different types of LPA:

 Property and Financial Affairs LPA: this enables a donor to appoint an attorney to make
decisions on the donor’s behalf in relation to property and financial matters. When it has
been registered, it may be used at once, unless the donor specifies otherwise.

 Health and Welfare LPA: this enables a donor to authorise the attorney(s) to act in
relation to all, or only specified, matters concerning their personal welfare. The types of
decisions that welfare donees could be authorised to take might include, for example,
decisions on where the donor should live, and giving or refusing consent to medical
examination and/or treatment. These decisions can only be taken by the attorney if the
donor lacks the capacity to make the necessary decision him/herself.

The Act provides that an LPA must be in a prescribed form and must contain prescribed
information. There are different forms for the two types of LPA. Lasting Power of Attorney
forms and guidance are available from the GOV.UK website.1

LPAs must include a certificate signed by a “certificate provider” that in his/her opinion, when
the donor executes the document:

 the donor understands the purpose of the LPA and the scope of the authority under it

 that no fraud or undue pressure is being used to induce the donor to create the LPA and

 there is nothing else which would prevent the LPA being created.

A certificate provider may be someone who has known the donor for at least two years; or
someone who has relevant skill or knowledge to be able to form a professional judgment
about the donor’s understanding. The LPA guidance sets out who may and may not be a
certificate provider:

If you choose someone with relevant professional skills, they must be one of the
following:

 a registered healthcare professional (your doctor for example)

 a solicitor, barrister, or advocate

1
GOV.UK website, Lasting Power of Attorney [accessed 5 December 2012]

2
  a registered social worker

 an Independent Mental Capacity Advocate (IMCA)

 someone who considers that they have the relevant professional skills and can
specify what they are...

Family members, who cannot be a certificate provider, include, for example:

 spouse or civil partners (or people living together as such)

 children, grandchildren

 parents, grandparents

 brothers, sisters (including half-brothers and half-sisters)

 aunts, uncles

 nieces, nephews

 someone related by marriage (such as a son-in-law or daughter-in-law)

 Step-parents or Step-children

There are other relationships that the Public Guardian may consider ineligible. The
Court may similarly rule on ineligible relationships. It is therefore advisable not to use
anybody who has a family connection of any kind. 2

An LPA cannot be used until it is registered with the Office of the Public Guardian (OPG),
even if the donor retains mental capacity. The fee for registering each lasting power of
attorney is £130.3 The OPG has published a list of fees and of exemptions and remissions.4

The donor may specify in the LPA named persons who should be notified when an
application is made to register the LPA. Named persons can object to the LPA being
registered in certain circumstances. If the donor does not name anyone to be notified of an
application to register the LPA, there must be two separate certificate providers.

Guidance on the Act is provided in a statutory Code of Practice which is available online.5

Further information about LPAs is set out on the GOV.UK website including information
about choosing an attorney; registering an LPA; objecting to an LPA; cancelling an LPA and
contact details for the OPG.

The Government has recently consulted on a number of changes to LPAs which it wishes to
make in 2013. In addition, the consultation invited initial comments on some broader

2
Office of the Public Guardian, Guidance for people who want to make a lasting power of attorney for health
and welfare and Guidance for people who want to make a lasting power of attorney for property and financial
affairs [accessed 5 December 2012]
3
GOV.UK, Lasting Power of Attorney How much it costs [accessed 5 December 2012]
4
Office of the Public Guardian, LPA120 EPA and LPA Fees with effect from 1 October 2011 [accessed
5 December 2012]
5
Mental Capacity Act Code of Practice, 2007 [accessed 5 December 2012]

3
changes which may be made in the future.6 The consultation is related to the development of
an online process for LPAs:

The digital transformation of the Office of the Public Guardian (OPG) services is
designed to ensure that the OPG is able to deal effectively with future volumes across
all areas of its business and to ensure that customers receive the best possible level of
service. It will maximise the opportunities for individuals to plan ahead and make
decisions for themselves for a time in the future when they may lose capacity by
ensuring OPG processes are as simple, speedy and accessible as possible.

Why We Are Consulting

The OPG is working with the Government Digital Service (GDS) to deliver new user
friendly services that take advantage of digital technology to assist in the making of
LPAs and in the supervision of deputies. These developments will feed into the
Ministry of Justice’s Transforming Justice Agenda and the Government’s commitment
for more public services to be “Digital by Default”.7

The consultation included issues related to the format and content of the forms; certificate
providers; registration; named persons to be notified of an application for registration; and
statutory waiting times (the period during which named persons might lodge objections to the
appointment of the attorney).

The consultation ended on 19 October 2012 and the Government has not yet published its
response.

3 Enduring powers of attorney

Until 1 October 2007, it was possible to create an enduring power of attorney (EPA). An
EPA may authorise an attorney either to act with immediate effect in relation to the donor’s
property and financial affairs and to continue to act after the donor has become mentally
incapable; or to act as attorney only after the donor has lost mental capacity. EPAs could not
authorise an attorney to make decisions on health and welfare matters.

It is no longer possible to create a new EPA or to make changes to an existing EPA.

However, properly executed EPAs made prior to 1 October 2007 continue to be valid after
that date.

An EPA can be used without registration as long as the donor still has mental capacity. The
attorney has a duty to register the EPA with the OPG as soon as the donor has become, or is
becoming, mentally incapable of managing his/her own affairs. The duty arises when the
attorney has reason to believe that the donor is becoming mentally incapable and therefore
this is a decision for the attorney to make. Notice of the application to register the EPA must
be given to the donor and to specified relatives and there are various grounds for objecting to
the registration. If the donor becomes mentally incapable, the power will become irrevocable
without confirmation by the Court.

6
Transforming the Services of the Office of the Public Guardian: A Consultation, CP10/2012, 27 July 2012,
[accessed 5 December 2012]
7
Justice website, Transforming the services of the Office of the Public Guardian Overview, [accessed
5 December 2012]