Information about managing someone’s affairs
- Things to consider
- When does someone lack mental capacity?
- Lasting power of attorney (LPA)
- Enduring power of attorney (EPA)
- Ordinary power of attorney
- Who can act under a lasting power of attorney
- The duties of an attorney under an LPA
- Asking someone to be an attorney under an LPA
- How much it costs
- After you’ve registered
- Property and financial affairs
- Health and welfare
- Assessing someone’s mental capacity
- Stopping being an attorney
- How to set up a lasting power of attorney
- Who can make decisions when someone loses mental capacity and there's no power of attorney?
- Department for Work and Pensions appointeeship
- Appointee’s responsibilities
- Court of Protection deputyship
- If you are unable to take on the role of appointee or deputy
- Useful resources
- Making a complaint
- More information
If you are thinking about managing someone else’s affairs, you need to ensure you have the right authority to do this.
This factsheet gives advice about what authority is needed in different circumstances.
April 2021 (FS26)
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Things to consider
When someone makes a power of attorney, they appoint someone else to act on their behalf. The person making the power of attorney is called a donor and the person appointed to act on their behalf is called an attorney. A power of attorney gives the attorney the legal authority to deal with third parties, such as banks or the local council.
Some types of power of attorney also give the attorney the legal power to make a decision on behalf of someone else. For example, where they should live, or whether they should see a doctor.
In order to appoint a power of attorney, you must be capable of making decisions for yourself. This is called having mental capacity.
When does someone lack mental capacity?
It's important to know whether someone has the mental capacity to make a decision. This could affect the options you have for dealing with their affairs, such as whether it's still possible to make a lasting power of attorney (LPA).
If someone can make a decision for themselves, they can be said to have the mental capacity to make that decision. If they can’t make a decision, they can be said to lack the mental capacity to make that decision. Lack of mental capacity can be temporary or permanent, and could be caused by:
- brain injury
- a stroke
- alcohol or drug misuse
- the side effects of medical treatment
- any other illness or disability
There are guidelines to help you work out whether someone has the mental capacity to make a decision. Someone is unable to make a decision if they can’t:
- understand the information needed to help them make the decision, even when the information is given in a way which meets their needs – for example, using simple language or by sign language; or
- remember that information; or
- use or weigh the information to help them make the decision; or
- communicate their decision in any way
Someone may lack the capacity to make all decisions, or they may have the capacity to make certain decisions, but not others.
Once the person has lost the mental capacity to decide they want someone else to manage their affairs, it's no longer possible to grant a power of attorney.
The following types of power of attorneys can be granted whilst the person has capacity.
Lasting power of attorney (LPA)
The most common type of arrangement is called a lasting power of attorney (LPA). There are two types of LPA. The responsibilities will vary depending on whether you are the donor’s:
- property and financial affairs attorney
- health and welfare attorney
If you are an attorney acting under an LPA, you can help make decisions about someone’s money and health or make decisions on someone’s behalf. The person who appoints you is called the ‘donor’.
Enduring power of attorney (EPA)
Before 1 October 2007, it was possible to make an enduring power of attorney (EPA) to manage someone's property or financial affairs. It is no longer possible to make a new EPA. If an EPA was made before 1 October 2007 it can still be used. However, if the donor starts to become mentally unable to manage their affairs, the EPA must be registered with the Office of the Public Guardian (OPG).
See: Register an enduring power of attorney for information and guidance.
Even if you already have an EPA, it can only be used to look after someone's property and financial affairs, not their personal welfare. If you want power to look after someone's personal welfare (should they become unable to do this themselves), you may be able to take out a health and welfare lasting power of attorney.
Ordinary power of attorney
A third type of power of attorney is known as ordinary power of attorney (general power of attorney in Scotland). This option only covers property and finances, and ceases if the donor loses mental capacity. Ordinary power of attorney never needs to be registered with the authorities.
Who can act under a lasting power of attorney
- You can be an attorney if you’re 18 or over and you’re able to make your own decisions.
- You cannot be a property and financial affairs attorney if you’re subject to a Debt Relief Order or have been declared bankrupt.
- You or the donor must register the lasting power of attorney (LPA) before you can start making decisions.
- Unless you’re a professional attorney, you won’t normally be paid for being someone’s attorney.
The duties of an attorney under an LPA
Below we have set out a short summary of the kind of duties an LPA would have, both for property and financial affairs, and for health and welfare.
Property and financial affairs
As a property and financial affairs attorney, you’re responsible for helping to manage or managing things like the donor’s:
- money and bills
- bank and building society accounts
- property and investments
- pensions and benefits
You must follow the donor’s instructions about what to do or, if they’ve lost capacity, check the lasting power of attorney (LPA) form to see if the donor has listed restrictions on what you can do, or guidance on how they want decisions to be made.
- manage the donor’s finances in their best interests
- keep the donor’s finances separate from your own, unless you’ve got a joint bank account or own a home together. If you do, tell the bank or mortgage company you’re acting as the other person’s attorney
- keep accounts of the donor’s assets, income, spending and outgoings. The Office of the Public Guardian (OPG) and the Court of Protection can ask to check these.
You may be prosecuted if you misuse the donor’s money.
You cannot make any decisions regarding the donor’s healthcare under a financial LPA. The donor must appoint you as their attorney for health and welfare if you want to make these decisions.
Health and welfare
As a health and welfare attorney, you can make decisions about the person’s:
- daily routine, e.g. washing, dressing, eating
- medical care
- living arrangements, e.g. whether they live at home or move into a care home
Check the lasting power of attorney (LPA) form to see if the donor has listed:
- restrictions on what you can do
- guidance on how they want decisions to be made
You can’t sell or buy property on the donor’s behalf unless you’re also their property and financial affairs attorney.
You can’t make decisions about giving the donor treatment which will keep them alive unless they gave you permission in their LPA.
The donor may also have made an advance decision, sometimes called a ‘living will’. This is a legal statement about which medical treatments they do not want. It’s not part of their LPA, but you’ll need to consider it as well.
You may need to apply to the Court of Protection to make a decision if:
- the advance decision and the LPA give different instructions
- there is any doubt or disagreement about whether the treatment should be given
An attorney’s main duty is to provide for the donor’s needs. The Mental Capacity Act says how gifts can be made by the attorney.
You must only make gifts:
- to people who normally receive gifts from the person
- on suitable occasions, such as birthdays and weddings
- to charities that normally receive donations from the person
Gifts must be reasonable taking into account all of the circumstances – there is more guidance on this from the Office of the Public Guardian (OPG).
If you make gifts on behalf of your donor, you should ensure that they do not affect the person’s ability to meet the cost of their care.
Asking someone to be an attorney under an LPA
The donor will ask you to be their attorney. If you agree, you’ll need to sign their lasting LPA form.
They may appoint one or more attorneys. The LPA will say how you have to make decisions if there are other attorneys.
You can’t start using a LPA until it’s been registered with the OPG.
The LPA can be registered by either:
- the donor, if they’re able to make their own decisions
- you, as the attorney
You’ll be told if the donor registers the LPA – you can object to the registration.
It takes between 8 and 10 weeks to register an LPA if there are no mistakes in the application. You can create your LPA online, or fill in an LPA002 form which the Office of the Public Guardian can send you.
Before you register, you will also need to send a ‘notice of intention to register’ (LPA001) to all the ‘people to be told’ who the donor listed when they made the LPA.
If someone is named on both a property and financial affairs LPA and a health and welfare LPA that you’re registering, send them a notice for each. They’ll have three weeks to raise any concerns to OPG.
How much it costs
There are fees associated with registering an LPA. Details of costs are on Register a Lasting Power of Attorney.
You may be entitled to a reduction or exemption if you are on a low income or receive certain benefits.
You will need to pay twice if you are registering a property and financial affairs LPA and a health and welfare LPA. You can pay by credit card, debit card or cheque.
After you’ve registered
If there are no mistakes or objections, the OPG will return the LPA with a ‘registered’ stamp on every page. The original document or a copy certified by the donor or a solicitor must be given to organisations to prove you’re the attorney, then you can start using the lasting power of attorney.
When you can start making decisions on behalf of the donor depends on whether you’re a:
- property and financial affairs attorney
- health and welfare attorney
- a replacement attorney
All LPAs need to be registered before you can use them.
Property and financial affairs
You can start helping the donor make decisions about their property and money immediately if they give you permission. If they don’t give you permission, you can only make a decision when the donor lacks the capacity to make it.
Health and welfare
You can only make a decision about the donor’s health and welfare if they don’t have the capacity to make it.
Assessing someone’s mental capacity
Even if the donor can’t make a decision at a certain time, they may be able to:
- make it at another time
- make decisions about other things
You must help the donor make decisions where they still have mental capacity. Talk to other people, including the donor’s doctor, about the person’s ability to make decisions.
You’ll find guidance and examples in the Mental Capacity Act code of practice or you can contact Health and Social Care Connect for more information.
Stopping being an attorney
The LPA will end if the donor cancels it or they die.
You can stop being an attorney by choice.
You may be investigated if there’s a complaint against you. The Office of the Public Guardian can apply to the Court of Protection to have you removed.
How to set up a lasting power of attorney
You can create a LPA online for England and Wales.
Alternatively, a solicitor or local advice agency can help you set up the LPA and register it. Solicitors will charge for their services:
Who can make decisions when someone loses mental capacity and there's no power of attorney?
Once the person has lost their mental capacity, it's no longer possible to grant a power of attorney. You may need to make decisions for someone who has lost their mental capacity when there's no lasting power of attorney or registered enduring power of attorney.
In order to make decisions you must have the right authority depending on what decisions need to be made. Some decisions can be made if you are appointed by the Department for Work and Pensions to act for the person. Other decisions can only be made if you are appointed by the Court of Protection.
Department for Work and Pensions appointeeship
You can apply for the right to deal with the benefits of someone who can’t manage their own affairs because they’re mentally incapable or severely disabled.
Only one appointee can act on behalf of someone who is entitled to benefits (the claimant) from the Department for Work and Pensions (DWP).
An appointee can be:
- an individual – e.g. a friend or relative
- an organisation or representative of an organisation – e.g. a solicitor or local council
As an appointee you’re responsible for making and maintaining any benefit claims. You must:
- sign the benefit claim form
- tell the benefit office about any changes which affect how much the claimant gets
- spend the benefit (which is paid directly to you) in the claimant’s best interests (this includes paying care fees due and managing their personal allowance)
- tell the benefit office if you stop being the appointee, for example, where the claimant can now manage their own affairs
If the benefit is overpaid, depending on the circumstances, you could be held responsible.
See Become an appointee for someone claiming benefits for information on who to contact to apply to become DWP appointee.
Court of Protection deputyship
If the client has savings, a private bank account, private pension or other capital you will need to apply to the Court of Protection for a Deputyship Court Order to administer these funds.
It is possible to apply to the Court of Protection for a decision to be made on a particular matter. However, if there is a continuing need to make decisions on the person's behalf, you can ask the Court of Protection to appoint you as a deputy. A deputy was previously known as a receiver.
A deputy is usually a family member or someone who knows the person well. There are two types of deputyship, property and affairs and health and welfare. A property and affairs deputy can make decisions about someone’s property and financial affairs. A health and welfare deputy can make decisions about someone's personal welfare.
If there's no friend or family member who is suitable or willing to act as a deputy, the Court of Protection can appoint a professional from a panel or a public authority.
Sometimes, two or more deputies are appointed. They can be asked to act together in all matters. Alternatively, they can be asked to act together and independently which means that they can act together but may also act independently if they wish.
You will have to be able to show the Office of the Public Guardian that you're acting in the best interests of the person who has lost their mental capacity. The Court can cancel your appointment if it decides that your appointment is no longer in the best interests of that person.
The Office of the Public Guardian will be responsible for supervising and supporting you. See Deputies: make decisions for someone who lacks capacity for further information.
If you are unable to take on the role of appointee or deputy
When a person lacks mental capacity to deal with their own financial affairs, and has no one able to deal with their finances for them, East Sussex County Council can apply for Corporate Appointeeship, or Deputyship. Due to the level of demand for this, there are criteria that clients must meet for the council to act for them:
- The client lacks mental capacity to deal with their own financial affairs.
- The client must be receiving care services.
- No suitable relatives or friends are able to take on this responsibility.
- The client must normally have less than £16,000 capital.
If East Sussex County Council is unable to take on the role of appointee or deputy, advice should be sought from a solicitor, accountant or independent financial adviser.
Office of the Public Guardian
Phone: 0300 456 0300 Monday to Friday: 9am to 5pm, except Wednesday, 10am to 5pm
Email: Office of the Public Guardian
Office of the Public Guardian
PO Box 16185
Birmingham B2 2WH
Court of Protection
Phone: 0300 456 4600
Email: Court of Protection
Court of Protection
PO Box 70185
First Avenue House
42-49 High Holborn
London WC1A 9JA
Making a complaint
If you want to make a complaint about Adult Social Care, you might want to use an independent advocate to help you understand the complaints process and put your views across effectively.
See Make a complaint or give feedback for more information.
See further leaflets and factsheets
Contact us to get more copies of this factsheet, or any of the other leaflets or factsheets mentioned.
Email: Health and Social Care Connect
Phone: 0345 60 80 191
Minicom : 18001 0345 60 80 191
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