Power of attorney

Power of attorney is a legal document whereby one person (the 'donor') gives another person or persons (the 'attorney') the power to act on his or her behalf with regard to his or her property and financial affairs.

The most common types of power of attorney in England and Wales are:

• Ordinary power of attorney - can be general or limited to specific affairs, can only be used if the donor still has mental capacity
• Enduring power of attorney - appointed in advance to be used only after the donor loses mental capacity (must be registered)
• Lasting power of attorney - replaced enduring power of attorney, can be used before and after donor loses mental capacity (must be registered)

Usually, an ordinary power of attorney is created for a set period of time in cases where the donor is going abroad or is unable to act for some other reason and wishes someone else to have the authority to act on his or her behalf. An ordinary power of attorney will usually end either at a specified time or upon the request of the donor at any time using a deed of revocation. It will automatically be revoked if the donor loses mental capacity.

In contrast, an enduring power of attorney (EPA) allows the donor to appoint a legally authorised person to look after their property and financial affairs should they lack mental capacity to do so at some point in the future. The attorney will only begin using the power if he has reason to believe that the donor has become or is becoming mentally incapable. It is no longer possible for donors to set up an enduring power of attorney. If they were set up before 2007, they can still be used. The attorney MUST register with the office of the public guardian before the EPA is used.

Lasting power of attorney (LPA) has been available since 2007. It is similar to an enduring power of attorney with a few important differences. Like the EPA, it must be registered with the office of the public guardian before it can be used; however unlike the EPA, it can be registered and used (with the permission of the donor) before the donor loses mental capacity. Once the donor loses mental capacity, the LPA must make decisions for the donor in their best interest.

There are two types of LPA. The most common type is a finance LPA which gives the attorney power to manage the donor's property and financial affairs.

A less common type of LPA is a welfare LPA. This gives the attorney power to make personal health and welfare decisions for the donor. Welfare LPAs can only be used and registered when the donor lacks capacity to make a specific health or welfare decision. The donor may place restrictions on the scope of the LPA and must specify whether the LPA can make decisions for the donor about end of life care and treatment.

For example, if a person lacked capacity to make decisions about their health needs, a welfare LPA could give consent on their behalf for medical treatment. A welfare LPA may also make decisions for the donor such as where they should live. Relatives (even spouses) who have not been appointed as welfare LPA do not legally have the power to decide this for their loved ones. In the absence of a welfare LPA, when a person cannot make decisions for themselves about their care or treatment, decisions are made in their best interest by health or social care professionals. Professionals make these decisions in partnership with the relatives; however unless there is a welfare LPA, the professionals are ultimately responsible to decide what care or treatment is in the person's best interest.

More information about appointing a finance or welfare LPA is available on the Directgov website.