A power of attorney (PoA) is a legal document in which someone (the donor) gives another person (the attorney) the right to help them make decisions, or take decisions on their behalf.
As a solicitor, you can:
- help set up a PoA
- check the donor has mental capacity to make a PoA
- advise the donor on their choice of attorney
- act in a professional capacity as the donor’s attorney
Someone may want to make a PoA:
- temporarily, for example because they’re in hospital or abroad for a long time
- for the long term, if they lose mental capacity to make decisions for themselves in the future
The donor must have mental capacity when they make a PoA.
A PoA can give an attorney the power to make a range of decisions on the donor’s behalf. For example, they can:
- look after the donor’s bank account, savings and investments
- buy and sell property
- decide where the donor lives
- decide on the donor’s medical treatment
Different types of PoA can be used in different situations. A donor may wish to set up more than one type.
Types of powers of attorney
There are three types:
- ordinary power of attorney (OPA) gives an attorney the authority to make decisions while the donor still has mental capacity but needs some temporary help to manage their affairs, for example because of illness
- lasting power of attorney (LPA) gives an attorney the authority to make decisions about finances, property and welfare with the donor’s permission or when they lose capacity
- enduring power of attorney (EPA) gives an attorney the authority to make decisions about the donor’s property and financial affairs. EPAs are no longer available but are valid if correctly made and signed before 1 October 2007
Some PoAs must be registered with the Office of the Public Guardian (OPG). OPG is a government body that:
- keeps a register of LPAs and EPAs
- investigates complaints against attorneys
Preparing a power of attorney
There are some general rules which apply to all the types of PoA.
Do not accept the donor’s instructions if you have reasonable grounds to suspect they may be making them against their will or under undue influence.
If instructions are given by someone other than the client, check that the client agrees with the instructions before acting.
If in doubt, it’s a good idea to meet the client in person.
For more information, see section 5 of our practice note on LPAs.
It’s important to stress to the donor that they must trust the person they choose as their attorney to:
- understand their wishes
- respect their values
- make decisions in their best interests
An attorney must:
- be at least 18 years old
- have mental capacity
- not be bankrupt or subject to a debt relief order if the power relates to property and financial affairs
For each type of PoA the donor can appoint as many attorneys as they like. It’s a good idea to have more than one, in case that attorney is not able to act for them in the future.
If there are several attorneys, the donor can appoint them to act:
- jointly – they must always make decisions together. This means it may be harder for one attorney to do something that’s not in the best interests of the donor. But if an attorney loses mental capacity the PoA can no longer be used
- jointly and severally – they can all act together or independently. This means the PoA stays valid if, for example, an attorney loses mental capacity
The donor can specify that their attorneys act jointly in some matters and jointly and severally in others.
Attorneys are usually unpaid unless the donor specifies they should be paid. However, they can claim back expenses, for example travel costs, from the donor’s money. They must keep an account of any expenses and receipts.
Acting as a professional attorney
The donor can ask a professional, such as a solicitor or accountant, to act as an attorney.
If you wish to charge for your services, you should:
- discuss your fees up front with the donor
- include a charging clause in the PoA
- tell the donor it’s likely that your fees will go up over time
When you agree to act as an attorney you must understand the legal duties and responsibilities involved. Professional attorneys must also comply with the MCA 2005 Code of Practice.
OPG expects a higher standard of care and skill from paid professional attorneys than unpaid attorneys.
If a person loses mental capacity without having a PoA in place, the Court of Protection can appoint a deputy to make decisions on their behalf.
Abuse of a power of attorney
While the donor should choose attorneys they can trust, there’s a risk that an attorney may not always act in the best interests of the donor.
An attorney may be abusing their position if they:
- stop relatives or friends contacting the donor
- refuse to let healthcare or social care workers see the donor
- apply for a loan or credit card in the donor’s name
- spend the donor’s money unusually or extravagantly
- take the donor out of hospital against medical advice
- make larger gifts to themselves
If you suspect that an attorney may be misusing a PoA or acting dishonestly, you must contact the OPG Safeguarding Unit immediately:
- 0300 456 0300
You should also contact the police if you suspect psychological, physical or sexual abuse, theft or fraud.
MCA 2005 Code of Practice – see paragraphs 7.69 to 7.74 and chapter 14.
Read our practice note on financial abuse – section 5 explains what steps you can take if you suspect financial abuse
Practice note on LPAs – contains general information on all types of PoA.
Chapter 7 of the MCA Code of Practice provides full guidance on acting as an attorney.