How to set up power of attorney

How to set up power of attorney

Power of attorney (PoA) is a legal document which allows one person (the donor) to give at least one other person (the attorney) the right to make decisions on their behalf.

In England and Wales, a lasting power of attorney (LPA) can cover property and financial affairs (whether or not the donor has mental capacity), as well as health and personal welfare (effective only when the donor is unable to make decisions). 

The LPA has to be created by the donor (the person whose finances or health and welfare it covers) or their attorneys can 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. If you do it yourself make sure you get it right as mistakes can mean it will be rejected and you’ll have to submit it again. 

There are some services which will review your document before you register, such as those offered by Which?, to check for mistakes before the application is submitted. 

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: Court of Protection: managing affairs without power of attorney

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How do I register a power of attorney?

Here, we explain how to set up and register a power of attorney in England and Wales. 

1. Choose an 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 jointly and 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.

It's possible to impose various restrictions and conditions on your attorneys, although these may be rejected by the OPG and potentially financial institutions 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. This can add an extra layer of complexity to what may already be a stressful time.

2. Get signatures from certificate providers

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

The forms must be signed by a 'certificate provider' 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. This must be done in a strict order or the document will be void. More information on the order can be found here.

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. Submit power 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 pay by phone, the OPG will contact you once they have received the documents. 

If you've used the government's online service to 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 the OPG.

The OPG has said to allow up to 20 weeks to register applications, if no mistakes are found. 

In September 2023, the Power of Attorney Act was given Royal Assent, aiming to bring the paper-based system online to speed up registration and improve safeguards in the process to prevent fraud.

5. Register your 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.

You can choose who the registered power of attorney is returned to, and either store 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.

In 2020, the OPG launched a digital service allowing attorneys and donors in England and Wales to share details of their LPAs with banks and other organisations online via a secure access code, to cut the need for in-person visits during the pandemic.

Currently, the service can only be used by those who registered an LPA since January 2016.

Power of attorney in Scotland and Northern Ireland

In Scotland there are three types of power of attorney - one for financial affairs called a continuing power of attorney (CPA), one for personal welfare called a welfare POA and another which combines both continuing and welfare. 

This must be registered with the Scottish OPG. The OPG will not provide template documents for CPA, so you will need to arrange for your own PoA to be drafted. 

If you are using a solicitor, they’ll be able to do this for you. You can also purchase template packs from stationary shops, and Which? also provides a PoA service. 

However, in Scotland, only a prescribed person can confirm that you are capable and able to grant the power of attorney. As part of the process, a solicitor registered to practise law in Scotland or a registered UK medical doctor must carry out an interview with you and confirm that you understand the nature and impact of making a power of attorney.

Which? has had feedback from members using a power of attorney service that some solicitors and doctors are reluctant to provide this service, so if you are using a reviewing service, such as Which? make sure you locate a solicitor or doctor first who will provide you with this service, and confirm their fees for doing so.

Northern Ireland uses the older enduring power of attorney (EPA) for property and financial affairs, which costs £165 to set up (you can’t give another person the legal right to make medical decisions). The document must be registered with the Office of Care and Protection.

First, you’ll need to create your EPA using a form, which can be downloaded from the Law Society of Northern Ireland website. 

Once you have completed the EPA form, it must be signed by you and witnessed. It must then be signed by the attorney(s) and witnessed. Attorney(s) can’t act as witnesses for each other’s signatures or yours, and you can’t act as a witness for theirs.

Before an EPA can be registered with the OCP, notice must be given to all those who require notice under the Enduring Powers of Attorney Order 1887. You can do this using ‘Form EP1’. 

You can then send the signed EPA document, and an EP2 form to the Office of Care and Protection. These forms can be downloaded from the Department for Justice page. 

Further advice about setting up an EPA can be found on NI.Direct and on the Alzheimer's Society website. 

The process for using a CPA or EPA with banks is much the same as in England and Wales.

How much does a power of attorney cost?

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 £85, and in Northern Ireland, it's £165.

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 original fee.

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 below may not apply in all cases.

You can find out how long each bank takes and how to register as part of our investigation looking into some of the main issues attorneys face.

1. Register a 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

Several providers now allow you to register completely online. 

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 2024, 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. Declare the 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.

3. Making payments with a power of attorney

Once registration is complete, it should mean attorneys can access and manage their donor’s accounts with ease. But not every bank will give attorneys the same level of access as the donor.

Most banks will give you telephone and online access to the donor's account, in addition to being able to give instructions in branch. 

However, only a small number of banks will give you access to the mobile app.

To find out about the main issues attorneys faced when managing accounts on behalf of donors, read our 2024 investigation.

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.

You can find guidance on how to manage someone’s financial affairs here from the OPG.

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.

There are also specific rules around gifting as an attorney around special occasions such as Christmas and birthdays.

How do I cancel my power of attorney?

As long as the donor still has mental capacity, they revoke the appointment of one or more attorneys. 

To do this in England and Wales, 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

In Scotland, you can revoke the power of attorney after the document has been registered, by giving notice in writing to the Scottish OPG. 

In Northern Ireland, you can revoke an EPA while you remain mentally capable and your EPA has not been used. You should give notice of revocation to your Attorney. Once an EPA has been registered, it can only be revoked by the High Court.