How to make, register or end a lasting power of attorney
The Mental Capacity Act 2005 allows a person to appoint a Lasting Power of Attorney (LPA) to make decisions and act on their behalf if they should lose capacity in the future. Information on the Deprivation of liberty safeguards – Code of Practice is also given
Introduction
A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or make decisions on your behalf.
This gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions at the time they need to be made (you ‘lack mental capacity’).
You must be 18 or over and have mental capacity – the ability to make your own decisions – when you make your LPA.
There are 2 types of LPA:
- health and welfare
- property and financial affairs
You can choose to make one type or both.
There’s a different process in Scotland and Northern Ireland.
You can only set up a Lasting Power of Attorney when you have mental capacity. Once you’ve lost capacity, it’s too late.
How to make a lasting power of attorney
- Choose your attorney (you can have more than one).
- Fill in the forms to appoint them as an attorney.
- Register your LPA with the Office of the Public Guardian (this can take up to 10 weeks).
It costs £110 to register an LPA unless you get a reduction or exemption.
Health and welfare lasting power of attorney
Use this LPA to give an attorney the power to make decisions about things like:
- your daily routine, e.g. washing, dressing, eating
- medical care
- moving into a care home
- life-sustaining treatment
It can only be used when you’re unable to make your own decisions.
Property and financial affairs lasting power of attorney
Use this LPA to give an attorney the power to make decisions about money and property for you, for example:
- managing a bank or building society account
- paying bills
- collecting benefits or a pension
- selling your home
It can be used as soon as it’s registered, with your permission.
Help deciding if you should make a lasting power of attorney
Contact the Office of the Public Guardian if you need help.
Office of the Public Guardian
customerservices@publicguardian.gsi.gov.uk
Telephone: 0300 456 0300
Textphone: 0115 934 2778
Monday, Tuesday, Thursday, Friday, 9am to 5pm
Wednesday, 10am to 5pm
Find out about call charges
You can cancel your LPA if you no longer need it or want to make a new one.
Choose your attorney
You can choose one or more people to be your attorney. If you appoint more than one, you must decide whether they’ll make decisions separately or together.
Who can be your attorney
Your attorney can be anyone 18 or over, such as:
- a relative
- a friend
- a professional, eg a solicitor
- your husband, wife or partner
You must appoint someone who has the mental capacity to make their own decisions.
When choosing an attorney, think about:
- how well they look after their own affairs, eg their finances
- how well you know them
- if you trust them to make decisions in your best interests
- how happy they will be to make decisions for you
Read about an attorney’s responsibilities to help you with your decision.
You can’t choose someone who is subject to a Debt Relief Order or is bankrupt if you’re making a lasting power of attorney (LPA) for property and financial affairs.
If there’s more than one attorney
If you’re appointing more than one person, you must decide if they’ll make decisions:
- separately or together – sometimes called ‘jointly and severally’ – which means attorneys can make decisions on their own or with other attorneys
- together – sometimes called ‘jointly’ – which means all the attorneys have to agree on the decision
You can also choose to let them make some decisions ‘jointly’, and others ‘jointly and severally’.
Attorneys who are appointed jointly must all agree or they can’t make the decision.
Replacement attorneys
When you make your LPA you can nominate other people to replace your attorney or attorneys if at some point they can’t act on your behalf anymore.
Make a lasting power of attorney online
Fill in the forms online to create a lasting power of attorney.
You’ll need to print out the forms and sign them when you’ve finished. You’ll also need to get other people to sign them, including the attorneys and witnesses.
Contact the Office of the Public Guardian to get details of organisations that can help you use the online service if:
- you don’t have a computer or internet access
- you want to use the online service but need some help
Office of the Public Guardian customerservices@publicguardian.gsi.gov.uk
Telephone: 0300 456 0300
Textphone: 0115 934 2778
Monday, Tuesday, Thursday, Friday, 9am to 5pm
Wednesday, 10am to 5pm
Find out about call charges
If you can’t use the online forms
You can download and fill in the forms. Print them out when you’ve finished.
Alternatively, ask for the forms to be posted to you.
Sign the completed forms. You’ll also need to get other people to sign them, including the attorneys and witnesses. Send them to the address on the form.
You must register your lasting power of attorney or your attorney won’t be able to make decisions for you. Your attorney can also register it for you – you’ll be told if they do and you can object to the registration.
Get help making a lasting power of attorney
You can get someone else to use the online tool or fill in the paper forms on your behalf, e.g. a solicitor.
You’ll need to sign the forms when they’re finished. You’ll also need to get other people to sign them, including the attorneys and witnesses.
Register a lasting power of attorney
When you’ve made your lasting power of attorney (LPA), you need to register it with the Office of the Public Guardian (OPG). An unregistered LPA will not give the Attorney any legal powers to make a decision for the Donor. The Donor can register the LPA while they have capacity, or the Attorney can apply to register the LPA at any time.
Certify a copy of a lasting power of attorney
You can confirm that a copy of your LPA is genuine by ‘certifying’ it if you’re still able to make your own decisions.
You or your attorney can use a certified copy to register your LPA if you don’t have the original form.
Your attorney can also use it in the same way as the original – to prove they’ve got permission to make decisions on your behalf, eg to manage your bank account.
Mental Capacity Act (2005) Code of Practice
The Code of Practice (Code) provides guidance on how the Mental Capacity Act 2005 (Act) works on a day-to-day basis. It has case studies and explains in more detail what the key features of the law are. Certain categories of people have a legal duty to have regard to the Code. This includes:
- Professionals and anyone who is paid for the work they do in relation to people who lack capacity e.g. Doctors, nurses, social workers, care managers, solicitors, police officers, ambulance crew and paid carers;
- Attorneys appointed under a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA); and
- Deputies appointed by the Court of Protection (Court). Family, friends and unpaid carers do not have a duty to ‘have regard’ to the Code but will still find the guidance helpful.
The Code of Practice is also published in accordance with the Government’s commitment to provide guidance assisting businesses and third sector organisations comply with regulatory obligations. The Code was last updated on 23 April 2007 and any revision date is as yet undetermined.
Download Mental Capacity Act (2005) Code of Practice
Deprivation of liberty safeguards – Code of Practice
The deprivation of liberty safeguards (DOLS) have been introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007. It is planned that the safeguards will come into force in April 2009.
The safeguards provide a framework for approving the deprivation of liberty for people who lack the capacity to consent to treatment or care in either a hospital or care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty.
The safeguards legislation contains detailed requirements about when and how deprivation of liberty may be authorised. It provides for an assessment process that must be undertaken before deprivation of liberty may be authorised and detailed arrangements for renewing and challenging the authorisation of deprivation of liberty.
The Code of Practice contains guidance on the deprivation of liberty safeguards. It is particularly intended to provide guidance for professionals involved in administering and delivering the safeguards, who are under a duty to have regard to the Code. The Code is also intended to provide information for people who are, or could become, subject to the deprivation of liberty safeguards, and for their families, friends and carers, as well as for anyone who believes that someone is being deprived of their liberty unlawfully.
Factsheet download – Deprivation of liberty safeguards – Code of Practice