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Power of Attorney

Plan in case you lose mental capacity

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Jenny and Martin

Updated 4 Dec 2017

brain inside head

One person in the UK develops dementia every three minutes. Yet don't assume relatives can just walk into a bank and access your money, even if it is to pay for your care.

Unless you've a Power of Attorney already, loved ones would need to apply through court, which can be long and costly. So get it sorted – this guide shows you how to do it.

While every effort's been made to ensure this article's accuracy, it doesn't constitute legal advice tailored to your individual circumstances. If you act on it, you acknowledge that you do so at your own risk. We can't assume responsibility and don't accept liability for any damage or loss which may arise as a result of your reliance upon it. This guide has been written with the kind help of the Alzheimer's Society and Age UK.

What is Lasting Power of Attorney?

man with question markThinking and talking about what would happen if our faculties deserted us is uncomfortable. Yet it's important to consider how much worse the situation would be if you had a stroke, serious accident or dementia (eg, Alzheimer's) without sorting it first.

If someone has difficulties that mean they can't make decisions anymore, they will need help managing their finances. Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity. The key point to remember ...

Don't think you suddenly give up control. You can choose whether it can be used either before, or only when, you lose mental capacity.

Your representative should only ever make a choice for you if you're unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able to make your own decisions again.

It's worth noting LPAs replaced the previous Enduring Power of Attorney (EPA) system. EPAs set up before 1 October 2007 will still be valid, whether or not they have been registered, though they must be registered when the person loses capacity. For more, see the Government's EPA info.

The Health and Welfare Lasting Power of Attorney

Mention an LPA and many will automatically think of a person's finances, but there are actually two types to consider: one for finance and property, and another for health and welfare. Because we're, this guide concentrates on the finance and property one although the processes are similar for both.

In a nutshell, the health and welfare document sees a nominated individual make decisions over day-to-day healthcare and medical treatments, as well as deal with any health and social care staff. It's also worth noting these are two separate legal procedures that are independent of one another.

Just because you give the trusted person power of attorney over your health, that doesn't mean they will automatically gain control over your financial affairs and vice versa. If you require the same individual to have power of attorney over both aspects of your care, then you will have to fill out the two forms separately.

Another key difference is that the health and welfare LPA can only be used after the person loses capacity, not before. For more help on setting up a health and welfare LPA, see the Government's health & welfare LPA info. For those who want to decide any 'advance decisions' – eg, you don't want certain types of medical treatment in certain situations, if you lose capacity in future – you can make a living will.

How much does a Power of Attorney cost?

There's a compulsory cost of £82 to register a Power of Attorney (in England and Wales – it's £75 in Scotland, £127 in Northern Ireland). Though if you earn less than £12,000/year, you can provide evidence to have a reduced fee of £41.

It's £82 each for the property and finance LPA and the health and welfare LPA, so if you get both, that's £164. Those on certain benefits are exempt from fees.

Above and beyond that, if you decide to use a solicitor you'll also have to pay legal fees, though it's possible to set up a Power of Attorney on your own. See How to make a Power of Attorney.

Why set up a Lasting Power of Attorney?

If you lose mental capacity, unless you've already filled in the Power of Attorney forms, your loved ones will need to apply through court to become 'deputy', a long and expensive process.

Instead, you can nominate a trusted friend or relative before you lose capacity, by setting up a Lasting Power of Attorney (LPA). You can appoint one or more representatives to act for you, and can determine how they work together to make decisions on your behalf.

You may be thinking "this doesn't affect us, we're perfectly well". This is a common misunderstanding. The key thing to remember is...

You can only set up a Lasting Power of Attorney when you have mental capacity. Once you've lost capacity, it's too late.

The key is to act early. This story from forumite Norma Desmond explains why:

My mum is deputy (via the Court of Protection) to my dad, who has advanced dementia. It's a very long, drawn out and quite intrusive process.

It's also expensive. Mum will have to pay hefty yearly fees too. I just wish we'd managed to get Power of Attorney instead, when Dad was more capable. He got ill very fast and we couldn't implement it.

Who is this guide for?

Regardless of health, everyone should consider a Lasting Power of Attorney. Anyone over 18 can set it up – you don't need to be unwell. Charity Age UK says:

There's no specific age when you should consider making a Power of Attorney. Young people can lose capacity through accidents. But if someone is diagnosed with a condition likely to cause loss of capacity, they may be well advised to think about who they want to make decisions for them when they can no longer do so.

The most common conditions this relates to are: stroke, coma, delirium, concussion, severe mental health problems, neuro-disability/brain injury, alcohol and drug misuse, Alzheimer's and other forms of dementia.

Map of the UKThis guide's written with the law in England and Wales in mind. In these countries, the process is overseen by the Office of the Public Guardian. However, much of it also applies to Scotland and Northern Ireland.

In Scotland, there are three Powers of Attorney: one for financial matters, called a continuing Power of Attorney; one for personal welfare, a welfare Power of Attorney; and a combined POA that covers both continuing and welfare, which is the most common. For full details, see the Office of the Public Guardian (Scotland) and Alzheimer Scotland's Money and Legal Matters guides.

For Northern Ireland see NI Direct's Power of Attorney info.

What is mental capacity?

Mental Health and Debt GuideEvery day we make decisions about our lives. The ability to make these decisions is called mental capacity. People may not be able to make decisions some or all of the time, perhaps because they have a learning disability, dementia, brain injury or have had a stroke.

It's important to note that living with a mental health condition (depression, bipolar disorder, schizophrenia, etc), doesn't necessarily mean someone lacks capacity. If a loved one has a mental health problem, download our stigma-busting Mental Health & Debt help booklet, aimed at sufferers, as well as friends, family and carers.

Who decides if someone has capacity?

The Mental Capacity Act 2005 says a person is unable to make a decision if they can't do one of the following: understand information relevant to a decision; retain that information long enough to make the decision; use or weigh that information; or communicate the decision. Read more on the Act's definition of capacity.

Arrow with lightbulbWhen you make a Power of Attorney in England and Wales, a 'certificate provider' decides if you're capable of making that choice. This can be someone you've known for two years or someone with relevant professional skills such as a doctor, lawyer or social worker.

In Scotland, this must be a solicitor who is registered to practice law in Scotland or a doctor. In Northern Ireland, the process is slightly different and you don't need a certificate provider. There's more on how it works in NI Direct's Power of Attorney info.

What to do next

The action to take depends on the situation. We use the word 'they' below for simplicity, but, of course, you can set up a Power of Attorney for yourself as well.

  • If they still have capacity:

    This is the best time to act. If the person still has capacity and would like to make arrangements in case they lose mental capacity, they can set up a Lasting Power of Attorney.

    Once submitted, it takes up to ten weeks to register. The power will be effective as soon as the LPA is registered, so the attorney will be able to start making decisions straight away, unless they specify otherwise on the application. See more on this in How to make a Power of Attorney.

  • If they've lost capacity:

    If a spouse, relative or friend already has limited mental capacity (see definition), but didn't set up Power of Attorney in advance, it gets more difficult. You need to become a deputy of the Court of Protection to make decisions on their behalf. See how to become a deputy.

  • If they still have capacity, but need help managing money:

    In some cases, a friend or relative may still be able to make decisions, but need help with the practicalities. For example, some people struggle to make phone calls or get to the bank. A few options can help – see Helping someone look after their money.

How to make a Power of Attorney – DIY or get help?

It's vital the person making the Lasting Power of Attorney understands what the forms mean. Of course, there's a trust issue here. While we don't want you to be overly cautious, sadly, in some cases, family or friends may be after someone's money. Ensure they (or you) feel comfortable with the choice and consider involving the whole family.

Step 1. Decide whether to use a solicitor

Step 2. Doing it yourself? Make your application via an online form

Step 3. Register the Power of Attorney

Quick questions

How long does registration take?

When is the Power of Attorney activated?

What obligations do representatives have?

The 'halfway house' option – get SOME legal help

If you don't want to do it yourself but balk at paying £100s for a solicitor, you can look at an option somewhere in between – ie, where you'll have limited legal help. Right now, we've a blagged discount on two different options:

New. £69.50 Which? Power of Attorney codes – fill in a questionnaire, then it's checked by a paralegal

Which Legal Services logoWith Which? legal services*, you fill in a questionnaire, the LPA is populated in for you, and then crucially it's checked by a paralegal.

The standard cost for the financial LPA is £139, but we've blagged codes to get this and other options half price (or a little cheaper) until 31 January 2018. To get the discount, follow the link and select the LPA(s) you want. The codes should be applied automatically at the checkout – if not, you can enter them manually.

  • England and Wales. A single property and financial or health and welfare LPA costs £69.50 each (usually £139 each). Enter the code MP11 for property and financial or MH11 for health and welfare. (As above, health and welfare LPAs aren't the focus of this guide so you'll need to do your own research if getting one).

    Alternatively for £129 (usually £278), you can get both LPAs using code MPH11. Or you can get two of the same LPA (eg, for you and a partner) by entering the code MPPF11 for property and financial or MPHW11 for health and welfare.

  • Scotland. Which? only charges one fee of £69.50 (usually £139) for the combined continuing and welfare POA with code MC11. Or you can get a pair for £129 (usually £278) with code MPHW11.
  • Northern Ireland. You pay only one fee of £69.50 (usually £139) for an Enduring Power of Attorney. Enter code ME11.

How it works

Once you've purchased the service, you fill in an online questionnaire which automatically populates the Government application forms. You complete it in your own time (you can call for support on 01992 822 803).

Which? specialists will also check and review your application within 10 days. Once it's approved, you follow Which? guidelines to sign and send off the forms. Registration currently takes 8-10 weeks.

You'll pay an application fee on top

You will still need to pay any application fees separately, eg, it's £82 to the Office of the Public Guardian for a financial Lasting Power of Attorney in England and Wales. (If you want the health and welfare one too, you need to pay another £82.) These fees apply whichever route you go down to get your Power of Attorney.

New. £202.50 Co-op Power of Attorney offer – a telephone consultation first plus help with LPA registration

Co-op Legal Services logoAlternatively you can draft your LPA with help from Co-op Legal Services* (England and Wales only – it doesn't cover Scotland and Northern Ireland).

This option is pricier than the Which? deal above, but you'll get a greater level of support. It's not the same as using a solicitor, but Co-op says the guidance and recommendations it provides do constitute legal advice and the service is regulated by the Solicitors Regulation Authority.

The standard cost for a single property and financial or health and welfare LPA is £270, but we've blagged 25% off, so you can get one for £202.50. We've also blagged 25% off for couples who want mirror LPAs – these cost £337.50 (normal price £450).

To take advantage of the offer, which runs until 31 January 2018, go via the specific link above and start your LPA online, arrange for Co-op to call you or phone Co-op yourself via the number listed. Whichever option you choose, the discount will be automatically applied.

How it works

Once you've made contact with the Co-op, it'll set up a telephone consultation with a member of its legal team who will talk you through the different types of LPAs, your choice of attorney and replacement attorney and any preferences or instructions to be attached to the LPA.

The Co-op will then prepare your LPA documentation, send it to you for signing by the donor, attorney and certificate provider and check it's been signed correctly when it's returned. It'll also complete and submit the papers to register the LPA at the Office of the Public Guardian.

You'll pay a registration fee on top

You will still need to pay to register each LPA at the Office of the Public Guardian, which costs £82. This means that if you want a property and financial LPA AND a health and welfare LPA, you have to pay another £164 in total. These fees apply whichever route you go down to get your Power of Attorney.

If they've already lost capacity...

If someone's unable to look after their affairs but did not set up Power of Attorney in advance, carers need to apply to the Court of Protection. The court will appoint a deputy to make choices about the person's finances, usually a family member or close friend.

There are two types of deputy: a deputy for property and financial affairs, and a deputy for personal welfare. The court decides whether a person who may have lost capacity is able to make decisions for themselves and if the friend/relative is the appropriate deputy.

The Scottish system works slightly differently. You need to apply for 'guardianship' at the local Sheriff Court – full details at the Office of the Public Guardian (Scotland).

How to find a solicitor

It costs £400 to register as a deputy and legal fees can be £1,000 or more (if you choose to use a solicitor). If the court decides the case needs a hearing, you'll need to pay £500 on top of that.

Deputies also have to pay an initial charge of £100 and ongoing supervision fees, which depend on the supervision level. These fees are £320 a year, unless you require minimal supervision, then it's £35. Read the Government's full guide to the deputy system.

Those on low incomes or on certain benefits can get the fees reduced or waived. See the Government's full list of fees.

It can be a long and costly process. Consider using a solicitor with specialist expertise. Try the Law Society's Find a Solicitor tool or, if appropriate, try Solicitors for the Elderly, a network of 1,000 solicitors specialising in issues affecting older people. Ask if it's a fixed fee.

How to help someone manage their money

SignpostIn some cases a friend or relative may still be able to make decisions, but need day-to-day help with filling in forms or calling banks.

There are a few options that can help:

  • Consider a third-party mandate

    Together, you could consider a third-party mandate. This lets a bank give someone access to another's account. The account holder specifies what the other person can and can't do with the account, so they must still be able to decide what to do with their money. The application procedure varies between banks. Call and ask how to apply.

  • Become an appointee

    In certain circumstances, the Department of Work and Pensions (DWP) can appoint a friend or relative or a representative of an organisation (like a solicitor or member of the local council) to receive someone else's benefits and to use that money to pay expenses such as household bills, food, or accommodation. Apply via the DWP.

    This usually happens when the individual has lost capacity, or when they have capacity but an exceptional, severe physical disability makes it hard for them to collect benefits.

  • Lasting Power of Attorney

    A Lasting Power of Attorney covering issues of finance and property allows the donor to specify whether it can be used before the loss of capacity, or only when they lack capacity. So if someone, for example an elderly relative, follows the steps above and specifies this, you will be able to deal with their affairs while they still have mental capacity.

  • Pay bills by direct debit

    Consider switching to paying bills by direct debit. These automatic payments can help people simplify their finances, helping to budget and ensure bills get paid.

    They should (possibly with your help) keep checking bank statements, making sure there's enough cash in their account, or the bank may charge them.

    You even get a discount from many companies for paying this way. A warning though: while direct debits for gas and electricity bills, home phone and broadband can save you money, home and car insurers charge interest for doing so.

  • If they're in debt, seek non-profit debt help

    If someone you know is in severe debt trouble, encourage them to seek help from a non-profit debt-counselling agency immediately.

More help and info

holding handsIf you're struggling with any of the issues raised here, try visiting a Citizens Advice centre. If someone's suffering from dementia, MoneySavers say the Alzheimer's Society's help is invaluable. You should also talk to your GP and (if applicable) social services. Other great sources of info include Age UK and Mind.

The following guides may also be relevant:

  • Make a will

    While you're setting up a Lasting Power of Attorney it's a good time to ensure you've an up-to-date will. Solicitor-drafted wills can be cheap or even free to make or amend. Find info on all the options in Free and Cheap Wills.

  • Do a five-minute benefit check

    Do check what benefits you're entitled to. A five-minute Benefits Check-Up will show if you qualify for extra help.

  • 51 MoneySaving tips for over-50s

    Whether your half-century is on the horizon or long gone, the older you are, the more your cash needs to look after you. To help, we've 51 Over-50s' MoneySaving Tips guide. It covers everything from freebies and discounts to how to convert a pension into an annuity.

  • Stop scam mail

    Scam letters often target vulnerable older people, usually hoaxing people into thinking they need to send cheques to secure lottery wins or to get prize holidays. If you're worried about this, charity ThinkJessica has more advice on its site.

    There are loads more tips to beat junk calls and post in the No More Junk guide. We've also a No Cold Callers sign to download.

  • Death happens – plan for it

    Death causes financial tragedies as well as grief. Hopefully you live happily to 120, but there are ways to lessen the impact when it happens. Our Death Happens – 20+ Things To Plan For checklist should help, including how to make a financial checklist for family and how to arrange who'd care for kids and pets.

  • Financial Conduct Authority mental capacity guidelines

    The Financial Conduct Authority (FCA) has guidelines on how banks must deal with people who have mental capacity problems when they apply for credit. While the guidance is aimed at lenders rather than consumers, it may help you negotiate with banks.

    The FCA tells lenders to explain credit agreements clearly to customers with limited mental capacity and give them enough time to weigh up information. Banks must carefully assess their ability to repay and refer them to specialist teams. See full guidance.

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