Most people meet the phrase at a hospital bedside or in a bank queue, usually when it is already a little late. So, what is power of attorney? It is a legal document in which one person (the donor) gives another (the attorney) authority to make decisions or take action on their behalf. The attorney does not need to be a lawyer; "attorney" here simply means someone appointed to act. In England and Wales there are three types, they look alike on paper, and they behave very differently on the one day most families actually need them.
What is power of attorney, in plain terms?
Think of it as a signed permission slip with legal teeth. Banks, building societies, councils, care providers and the land registry will deal with your attorney as though they were dealing with you, within whatever limits the document sets. Without one, the default is blunt: nobody, not a spouse, not an adult child, not a civil partner of forty years, has any automatic right to run your affairs. Being next of kin gives a relative a voice in conversations with doctors. It gives them no authority at all over your money.
That surprises people more than anything else in this area. A husband cannot sign for his wife’s pension. A daughter cannot move her father’s savings to pay his care fees. A joint account may keep working for the surviving holder, but a sole account, a sole-name house or an ISA stays locked until somebody holds proper authority.
The types of power of attorney in England and Wales
- Ordinary (general) power of attorney: made under the Powers of Attorney Act 1971, it covers financial matters for as long as you have mental capacity, and stops the moment you lose it
- Lasting power of attorney (LPA): made under the Mental Capacity Act 2005, registered with the Office of the Public Guardian, and designed to keep working after capacity is lost; it comes in two forms, one for property and finances and one for health and welfare
- Enduring power of attorney (EPA): the predecessor of the LPA, covering money and property only; none have been made since 1 October 2007, but those signed before then remain valid
The ordinary power of attorney: useful, and temporary by design
An ordinary power of attorney is a practical tool for a practical gap. You are working abroad for a year and need someone to sign the completion on a house sale. You have broken both wrists and want a son to deal with the bank for a few months. You can give general authority over all your financial affairs, or limit it to one account, one property or one transaction. It is signed as a deed, in front of a witness, and it is not registered anywhere, so it can be used almost immediately.
Its limit is also its defining feature. An ordinary power of attorney relies on you, the donor, being able to supervise and revoke it. If you lose the mental capacity to manage your own affairs, through dementia, a stroke or a head injury, the power ends automatically. The document that seemed to cover everything becomes useless on the day it is needed most. It also cannot touch decisions about your health, care or where you live.
The lasting power of attorney: the one built for loss of capacity
The LPA exists to solve exactly that problem. It is the only power of attorney you can make today that survives the loss of capacity, and it is the one most people mean when they say they should "sort out power of attorney". There are two types of LPA. The property and financial affairs LPA covers money, bills, investments and property, and can be used with your permission while you still have capacity if you choose. The health and welfare LPA covers care, living arrangements and medical treatment, including, if you grant it, decisions about life-sustaining treatment, and it can only be used once you cannot make the decision in question yourself.
The price of that durability is formality. An LPA must be made on the prescribed form while you have capacity. An independent certificate provider has to confirm you understand what you are signing and are not being pressured. The signatures go in a set order, and nothing can be used until the Office of the Public Guardian has registered the document, which costs £82 per LPA and takes weeks at the very least. What an LPA costs in full, including the reductions for people on low incomes, is covered separately.
The enduring power of attorney: still valid, often incomplete
If a parent signed a power of attorney before October 2007, it is an EPA. It still works, but only for money and property, and unlike an LPA it has to be registered at the point capacity starts to fail, with formal notice to relatives, at exactly the moment the family least needs a paperwork project. It gives no authority over care or medical decisions, and it cannot name replacement attorneys. Whether to keep or replace an old EPA is worth deciding while the person who made it can still take part.
What can an attorney do, and what can they not?
Within the scope you grant, a lot. A financial attorney can pay bills, manage accounts, deal with HMRC and the DWP, and sell your home to fund care. A health and welfare attorney can choose a care home, speak for you with doctors and, if you gave them that power, accept or refuse treatment. Every attorney under an LPA must act in your best interests as the Mental Capacity Act 2005 defines them, involve you in decisions as far as you can take part, and keep your money separate from theirs.
- An attorney cannot make or change your will; that takes a separate application to the Court of Protection for a statutory will
- An attorney cannot make large gifts of your money, including tax planning gifts, beyond modest customary presents, without the court’s permission
- An attorney cannot vote for you, consent to a marriage on your behalf, or make decisions the document does not cover
- An attorney cannot act after your death: every type of power of attorney ends when the donor dies, and authority passes to the executors named in your will
That last point catches families out in both directions. Some attorneys carry on paying bills from the account after the funeral, which they no longer have the right to do. Others assume the attorney and the executor are the same job. They are not, even when the same person holds both.
Which power of attorney do you need?
For a short, defined job while you are fully capable, such as a property sale while abroad, an ordinary power of attorney does it cheaply and quickly. For everything else, the answer is almost always a pair of LPAs. The risk they insure against is not being absent; it is being present and unable to decide, and only an LPA survives that. The two types cover separate ground, so most adults make both at once, often naming the same attorneys.
The deadline is invisible until it has passed. An LPA can only be made while you have capacity. Leave it too late and the family must apply to the Court of Protection for a deputyship, a slower, supervised and far more expensive route, with the court rather than you deciding who acts. For health and welfare there is effectively no substitute at all.
Putting it in place
Making an LPA well mostly means answering the questions properly: who your attorneys should be, whether they act together or independently, who steps in if one cannot, and what you want said about life-sustaining treatment. Willful’s LPA service takes you through those questions in a guided interview, completes the official forms, has an SRA-regulated solicitor check them before you sign, and prepares the registration paperwork, for £99 per LPA with the £82 registration fee paid to the Office of the Public Guardian as on every route. Many people do it in the same sitting as their will, since the same people and the same conversation sit behind both.