Carers' guide to Lasting Power of Attorney
Did you know that being “next of kin” gives us no legal rights to make decisions on behalf of the person we care for, if they lack the capacity?
To do this requires a Lasting Power of Attorney (LPA) - known as Powers of Attorney in Scotland.
An LPA may sound scary, but it’s one of the simplest legal documents to put in place. Saving us a huge amount of turmoil and legal faff, when the time sadly comes to use it.
With the input from carers in our community, our guide explains it all including lived experiencesand top tips.
“Having Power of Attorney has made my life so much easier in my caring role.”
- Member of the Mobilise Community
Important note before we get started...
We've written our guide around the working assumption that we, as unpaid carers, are appointed as the ‘attorney’ by the person we care for in their LPA. In other words, we are given permission (through the LPA) to make decisions in the person we care for's best interest, once they are no longer able to do so themselves.
Making sense of legal jargon
You might come across some new words throughout this guide, so our jargon buster section is helpful if you'd like to familiarise yourself with the legal meanings.
Everything we need to know about Lasting Power of Attorney as a carer
What is a Lasting Power of Attorney?
Lasting Powers of Attorney (LPA) or Powers of Attorney are legal documents that give one or more people the legal authority to manage someone else’s decisions and affairs should they become mentally and physically unable to do so.
The person who makes the LPA is called the ‘donor’. They then appoint someone to become their ‘attorney’. In other words, the person we care for (the donor) appoints us (the carer) to become their attorney.
We ourselves (as the carer), cannot put the LPA in place for them. This means the person we care for must have the mental capacity to do this before putting an LPA in place.
Example:
“My Mum has early-onset dementia. She wants me and my sister to have LPA for her when the time comes.”
In this case, the ‘Mum’ is the ‘donor’ and the ‘son and daughter’ are the ‘attorneys’.
There are two kinds of LPA, in which case the donor can apply for one, or both:
We can download the forms separately, (or for both) here.
The donor can include preferences and instructions in both types of LPAs. Where they have specific wishes about how their assets are managed, or what sort of care they should receive.
Attorneys must always have regard to the Mental Capacity Act 2005 and this includes acting in the donor’s best interests and consulting the donor on decisions where appropriate.
“Lasting powers of attorney for finance and property and health and welfare will give you the full and ongoing authority to act on behalf of your loved one and also in their absolute best interests.”
Mike, carer to his husband Tom, who has dementia. Read Mike’s full story of caring for a loved one with dementia and managing legal blindspots.
Why do I need a Lasting Power of Attorney
as a carer?
Having Lasting Power of Attorney in place, will give us the right by law, to make health and /or financial decisions on behalf of the person we care for, when they’re no longer able to do so themselves. It’s important to note however, that for Lasting Power of Attorney, the person we care for must have the mental capacity to allow us to become their ‘attorney’ prior to putting it in place.
Many people assume that as ‘next of kin’, we automatically acquire the right to make decisions on behalf of our ‘cared-for’ or loved ones, should they lose their mental capacity. This is not actually true. And is not the case in law.
To do so in law, requires a Lasting Power of Attorney to be in place or Powers of Attorney in Scotland.
Setting up a Lasting Power of Attorney (LPA) or Powers of Attorney (POW) can make our lives easier, at what will be an emotionally difficult time.
If we do not have a Lasting Power of Attorney in place, before the person we care for loses their mental capacity, we will then find ourselves unable to make financial or health decisions on their behalf.
“Lasting powers of attorney for finance and property and health and welfare will give you the full and ongoing authority to act on behalf of your loved one and also in their absolute best interests.”
- Mike, who cares for his husband Tom
LPAs and POWs are particularly useful for carers and the person we care for, as they enable us to assist with practical matters such as paying bills, managing benefits and pensions, and making decisions about medical care and treatment.
And it’s not just for those of us caring for people with a condition that will see their mental capacity decline. Lasting Power of Attorney’s are recommended for everyone, as we never know what’s ‘round the corner’.
Who should have a Lasting Power of Attorney?
The short answer is everyone! While this guide focuses on setting up a Last Power of Attorney (LPA) for the person we care for, we should also consider putting one in for ourselves. If something were to happen to us, who would we want making decisions about our health and finances on our behalf?
Becoming an appointee for someone claiming benefits
Did you know that as an unpaid carer, you can become an appointee for someone claiming benefits in the UK, when they're severely disabled or mentally incapable of making decisions?
This means that we'll be responsible for claiming a benefit for them, the benefit will be paid directly to us, but we'll need to make sure it's spent in the best interest of the person we care for.
So how is becoming an appointee any different from LPA or being someone's guardian? Unlike LPA and guardianship, becoming someone's appointee for their benefits is not legally binding - we are only responsible for taking charge of their benefits.
However, becoming someone's appointee may mean we're responsible for the actions of the person we care for, as well as the repayment of any overpayment.
How much is a Lasting Power of Attorney?
There is a registration fee of £82 per Lasting Power of Attorney in England and Wales, but this can be waived if the donor is in receipt of certain means-tested benefits (such as Income Support, Income-based Employment and Support Allowance, Job Seeker's Allowance or Housing Benefit).
We can see the full list of these means-tested benefits on the Lasting Power of Attorney fees form (page 2).
In Scotland, each Power of Attorney has a registration fee of £81. For fee exemption advice in Scotland, the Office of Public Guardian (Scotland) can advise.
“If in doubt DO IT! However you do it - yourself or via external help. It's worth the hassle & money in the end. Do it as soon as possible, don't delay.”
- Member of the Mobilise Community
What is a Property and Finance
Lasting Power of Attorney?
A Property and Finance LPA enables the attorneys (in this case, us as the unpaid carer) to access and manage the donor’s (in this case, the person we care for) finances and assets. These can include, for example, paying bills, investing money or selling property.
The donor (the person we care for) can choose whether to allow us, as their attorney, to act immediately, or only when they have lost mental capacity.
In other words, a Property and Finance LPA can be active before mental capacity is lost, if that’s what the donor decides. This can be really helpful for managing bills and acting on their behalf, removing some of the potential burden from the person we care for.
If the person we care for does not want the LPA to be activated prior to them losing their mental capacity, then they must make sure this is clear in their LPA.
What is a Health and Welfare Lasting Power of Attorney?
A Health and Welfare LPA enables the attorneys (us) to make decisions about the donor’s (the person we care for’s) medical care and treatment. This could include decisions on:
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Where the donor should live and how they are supported there
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Palliative care
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Medical treatment
A Health and Welfare LPA is only active, once the donor has lost their mental capacity to make decisions.
How does a Lasting Power of Attorney work with banks?
When the person we care loses mental capacity, having someone they trust to have access to their money is crucial. This could be for paying bills or withdrawing money on their behalf.
To do this, the person we care for (the donor) will need to register with their banks after the Property and Financial LPA application has been completed to grant us, the attorney, third-party access like the example of Barclays here (‘also known as third-party mandates’). They must have the mental capacity to do this.
When we have third-party access to the person we care for’s bank account, we can:
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View and request bank balance or statements
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Manage and withdraw money from the person we care for’s debit card
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Access the person we care for’s telephone or online banking
We cannot:
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Change the type of their account
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Change their name, address or contact details
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Open or close accounts
What we can and can’t access depends on the bank. Third-party access to the person we care for’s bank account doesn’t only apply to those of us with a LPA. It can also apply for deputies, and appointees - although each bank will have specific criteria we must meet.
Simply get in touch with them to find out more about their ‘third-party authority’ policy.
Most banks explain the process clearly on their website, or we can pop in and ask at our local branch.
How do I put a Lasting in Power of Attorney in place as a carer?
Firstly, many carers tell us that we don’t need to use a solicitor and that despite first impressions, the LPA paperwork is straightforward. Of course this will depend on how complex someone’s affairs are.
“Although the forms are long, they are very spread out, so they are not as bad as they look! The booklets on the website where you get the forms are very detailed - and answer most questions. You don't need a solicitor, although it can be useful to have someone go through the forms with you.”
- Unpaid Carer, Mobilise Community
The right support now, may save issues later, and Citizens Advice, or Citizens Advice Scotland are a good place to start, if we feel like more support would be helpful. And in Scotland, we may be eligible for financial legal support through the Scottish Legal Aid Board.
Many local carers’ centres and charities that support diagnosis (such as the Alzheimer's Society and Mencap), also offer free support for putting LPAs in place.
This nifty tool can help us locate our local carers’ centre.
LPAs are standard forms that can be obtained or downloaded from the Office of the Public Guardian.
“The Office of the Public Guardian (OPG) helps people in England and Wales to stay in control of decisions about their health and finance and make important decisions for others who cannot decide for themselves.”
1. The person we care for must have mental capacity
Firstly, the person we care for must put the Lasting Power of Attorney (LPA) in place (not us, as their carer). They must therefore have mental capacity.
Of course we can support them in the process, but ultimately it is the donor (in this case, the person we care for), who must put it in place. And this is why they must have mental capacity at the point of setting up the LPA.
2. Discuss the Lasting Power of Attorney with the person we care for
It is a very important topic to discuss with the person we care for. Particularly if they have a degenerative condition. It can be an emotional conversation to have, but incredibly valuable.
3. Decide on Attorneys
Firstly, the person we care for (donor) must decide on who they want to make decisions on their behalf. For the purposes of this guide, we have presumed this will be their carer. This makes ‘the carer’ the ‘attorney’. We can share this attorney role with others.
4. Download and complete the paperwork
All the forms to register the Lasting Power of Attorney are downloadable from The Office of Public Guardian.
In Scotland, downloadable forms are not available. But advice on how to draft the forms can be found from the Office of Public Guardianship (Scotland). Most solicitors are able to support with this activity.
5. Signing and witnessing
Once the forms are completed, they will need signing. There are multiple places to sign, so it’s wise to spend a little time familiarising ourselves. It’s worth checking out our carers’ top tips before we start.
Order of signing:
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The donor (the person we care for) signs, in the presence of an independent witness
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The witness to the donor’s signatures sings (this could be the ‘Certificate Provider).
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The ‘certificate provider’ (usually a friend, doctor or social worker) must then also sign the LPAs, confirming that the donor understands the LPAs and is not being pressured into making them.
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Finally, the attorneys (us as the carer!) sign the LPAs in the presence of an independent witness.
6. Register your Lasting Power of Attorney
As the attorney, we cannot act on the person we care for’s behalf, until the Lasting Power of Attorney (LPA) has been registered.
We can start the registration process (in England and Wales) online here.
And for those of us in Scotland, get started here.
Once fully signed, the LPAs can be registered with the Office of the Public Guardian or the Office of Public Guardian (Scotland). And remember, we may be eligible for financial legal support through the Scottish Legal Aid Board.
Top tips by carers, on putting Lasting Power of Attorney in Place
1. Don't rush
Take the time to gather the relevant info first and have it all in front of you before you start.
2. Use signposting
Signing on the day: We used practical props, to help everyone signing on the day, including:
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Little post-it note tags: to mark the sections requiring a signature.
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Spare copies of key pages so there was no pressure if they made a mistake.
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Info in pencil - we wrote everyone's entries (e.g. their address/dates etc) very faintly in pencil in advance. So all they had to do was write it in pen on top. This was especially helpful for my Dad who could still sign his name but struggled with dates - he'd get the numbers the wrong way round as his brain and hand no longer coordinated.
3. Pick a good day and time
This includes both you and them - you will need to be focused and patient.
4. Check and triple-check everything
"The family friend who acted as Dad's witness forgot to fill in her address. We didn't notice and that first form was rejected."
- Member of the Mobilise Community
5. Make sure the signatures are in black ink
And ensure they do not overflow the box as the form may be rejected.
6. It’s NEVER too early to get this set up
7. Use recorded delivery
Once you have all the signatures, dates etc. Send the documents using recorded (signed-for) delivery.
When the form is returned to you, the LPA will be registered and valid.
8. Get certified copies
Banks or government departments will ask to see the registered form as proof. There is no central register of valid LPAs, so you have to provide the LPA itself (original or certified copy).
You need lots (at least four) certified copies at the beginning, once it is registered. A solicitor can certify copies for you.
"Write the info in pencil on the LPA forms - we wrote everyone's entries (e.g. their address/dates etc) very faintly in pencil in advance. So all they had to do was write it in pen on top. This was especially helpful for my Dad who could still sign his name but struggled with dates - he'd get the numbers the wrong way round as his brain and hand no longer coordinated.”
- Member of the Mobilise Community
When should I create a Lasting Power of Attorney for the person I care for?
The short answer is “as soon as possible”. It is much harder (legally and emotionally) to put things in place once mental capacity is lost.
What if the person I care for does not have the mental capacity to sign a Lasting Power of Attorney?
If the person we care for is already considered to lack the mental capacity to make decisions, then we will be unable to apply for Lasting Power of Attorney or Powers of Attorney.
Sometimes the person we care for has never had the mental capacity to make decisions. For example, if they were born with a profound learning disability. And sometimes mental capacity is lost through a life-changing accident. We don’t always have time to plan.
In these instances, we can apply to be a deputy through the Court of Protection.
In Scotland, we can apply to the Office of Public Guardianship (Scotland) for a Guardianship Order.
England and Wales
The Court of Protection will make financial and welfare decisions for someone who lacks mental capacity.
There are several options open to us, if we wish to apply to be able to make decisions on our the person we care for's behalf:
1. Apply to be an appointee
If the person we care for is in receipt of benefits, we can apply to be an appointee, to manage their benefits on their behalf.
2. Apply to be a court-appointed deputy
This is particularly helpful if the person we care for has more than just benefits to manage. Similar to LPA and POW, there are two types of deputy - one for finances and one for welfare decisions.
The law recognises that some people may not be able to make their own decisions. And the Mental Capacity Act (2005) outlines how decisions are made concerning adults. This applies to anyone over the age of 16.
When a person is unable to make their own decision because they do not have the mental capacity to do so, other people have to decide what is in that person’s ‘best interests’. It is important to remember that a person may have the capacity to make some of the decisions in their life but not all of them. Deciding if someone has capacity is always decision specific.
When looking specifically at an adult child (16+), family members can continue to make many decisions for their adult child in their best interests. However, this will not automatically be the case in all aspects of their child’s life.
Importantly, however, the Mental Capacity Act (2005) states that professionals must consult us as parents or family members if our cared-for adult lacks the mental capacity to make a decision for themselves.
And parents and family members can challenge professionals if they feel that they are not being involved.
Ultimately, as parents and families we can ask for be referred to the Court of Protection if we believe our involvement is being limited or decisions are being taken that are not in our adult child’s best interests.
There are also some options that we can consider if we want to seek legal power to make certain decisions on behalf of our adult child. This includes applying to become a Deputy through the Court of Protection.
Apply for help with Court of Protection fees
Applying to become someone's Deputy can be costly (these fees are known as Court of Protection fees). We can however apply for help with Court of Protection fees using this form.
Scotland
The Office of Public Guardianship (Scotland) recommends seeking legal advice before applying for a guardianship.
A guardianship is:
“a court appointment which authorises a person to act and make decisions on behalf of an adult with incapacity. Anyone with an interest can make an application for a guardianship order. When we refer to an adult, this is someone who is aged over 16 who is not able to look after their own affairs.”
What if the person I care for has fluctuating mental capacity?
Sometimes our the person we care for may be able to make decisions when they're well, or in certain situations. However there are times and situations when they need support. While a Property and Finance Lasting Power of Attorney can be in place and used before full mental capacity is lost (if permission has been given), this isn't the same for a Health and Welfare LPA.
In these instances we can apply to the Court of Protection to be a 'personal welfare deputy'.
"You can apply to become someone’s deputy if they ‘lack mental capacity’. This means they cannot make a decision for themselves at the time it needs to be made. They may still be able to make decisions for themselves at certain times."
In Scotland, we can apply for an Intervention Order, which allows us to make decisions for a specific task (but ceases after that task is finished). Or a guardianship order allows for decisions to be made on an ongoing basis. The Office of Public Guardian (Scotland) has the full list of options available to us in Scotland.
If the person we care for are able, and when they're in a 'good place', they may want to consider creating an Advance Decision or Advance Statement for their future medical decisions. This is a way of expressing their wishes should they lack the ability to make their own decisions in the future. It's sometimes called a Living Will. An Advance Decision is legally binding, while the Advance Statement is our wishes.
In Scotland, the process is called Advance Directive.
Mental Health and decision making
The Mental Capacity Act (MCA) is the law that protects people who are unable to make decisions. This includes mental capacity which is lost for a short period of time. It's helpful to know that being unwell or having a mental illness, does not mean we lack mental capacity. That is assessed separately.
Rethink Mental Illness explain what the Mental Capacity Act is, how mental capacity is assessed and how we can future plan, including further information on Advance Statements and Advance Decisions.
When should I invoke my existing Lasting Power of Attorney for the person I care for?
Invoking a Finance and Property Lasting Power of Attorney
For Finance and Property Lasting Power of Attorneys (LPA), this will depend on the terms of the LPA.
If the person we care for (donor) has specified that the LPA can be used immediately as well as when they lose capacity, then the attorneys (that’s us - if we were appointed) can register the LPA with their banks, pension provider, DWP, etc. and immediately start managing the person we care for's affairs.
But, if the person we care for has specified that the LPA can only be used once they have lost their mental capacity, then we may have to formally establish this. For example, with a medical report to confirm the loss of mental capacity. This must be done before registering the LPA with the banks etc and then taking over the management of the donor’s affairs.
The helpful first step may be to chat with our GP or local carers centre.
Invoking a Health and Welfare Lasting Power of Attorney
Health and Welfare LPAs can only be used once the person we care for has lost capacity. We will have to formally establish this, for example, with a medical report to confirm the loss of mental capacity.
The attorney (us - if appointed) should register the Health and Welfare LPA with the person we care for’s GP and any other treating medical professional. We will then be able to make decisions about our cared-for’s medical treatment, welfare and so on.
In acting as the person we care for’s attorneys, we should always act in their best interests and consult with them wherever possible.
Coming to terms with the person we care for’s loss of mental capacity can also be an incredibly emotional time. Please book a free support call with our friendly support team, if you would like any support.
How long does it take to put a Lasting Power of Attorney in place?
Once our Lasting Power of Attorneys have been signed we need to send them to the Office of the Public Guardian (OPG) to be registered.
The OPG writes to the donor, attorney(s) and anyone the donor has requested to be notified, to confirm the LPAs will be registered, but we must wait a period of four weeks before completing the registration to allow any objections to be raised.
If no objections are received, the OPG will complete the registration.
Usually, the OPG takes between eight to ten weeks to complete the registration of LPAs (unless the application is urgent). LPAs cannot be used until registered.
However, due to Covid-19 there are delays in processing applications. Currently, this can take up 20 weeks (which includes the legal four week waiting period), from them receiving the application.
Can I share Lasting Power of Attorney responsibility with someone else?
Yes. In theory there is no limit on the number of attorneys. However most commonly there are between two and four attorneys.
End of life care plans
Aside from Lasting Power of Attorney, the person we care for might also like to prepare an Advanced Statement of Care or an Advance Decision (living will) (if they have mental capacity).
An Advance Statement of Care, is essentially a letter of wishes about the type of care they would like to receive and where. For example, palliative care in their own home or how they prefer a shower to a bath. This is a non-legal document, but which can give us the confidence to represent the person we care for’s views, to health professionals.
An Advanced Decision (or Living Will), specifically relates to decisions the person you care for may have relating to future treatments, including in what circumstances they would want to refuse further treatment.
End of life
When the person we care for passes away, the legal authority granted by the Lasting Power of Attorney becomes invalid. This means we can no longer legally manage their affairs.
Legal Jargon
Attorney
The person(s) appointed by the ‘donor’ to carry out the Lasting Power of attorney. For the purposes of this ‘Carer’s guide’ the attorney is likely to be ‘the carer’.
Donor
The person setting up the Lasting Power of Attorney for themselves. For the purposes of this ‘Carer’s guide’ the donor is likely to be ‘the person we care for’.
Assets
Anything of financial value that the donor owns.
Independent witness
The person who witnesses the donor’s signature must be over the age of 18 and cannot be one of the attorneys. The witness could also be the same person as the certificate provider.
Certificate provider
The person who confirms that the donor has independently signed the LPA with full knowledge, consent and capacity. They are an independent judge of your mental capacity and proof that the document(s) is not being signed under force.
A certificate provider could be:
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Someone who has known the donor well for a minimum of two years — this could be a friend, a colleague, neighbour, or work colleague.
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Someone with the professional ability to check your mental capacity — for example a doctor, solicitor or social worker. Note a solicitor may charge a fee for their time.
About this guide
We would like to thank the carers in the Mobilise Community for sharing their wealth of lived experience, which has helped us to create a really valuable ‘real life’ guide for all carers to benefit from.
We would also like to thank Elspeth Neilson, carer and solicitor at Osbornes Law, who provided the legal insights to our guide.