Most families meet power of attorney at exactly the wrong moment — after something has already happened. By then the easy route has usually closed.
This guide covers England and Wales. Scotland and Northern Ireland have different systems and different names.
This is not legal advice. It is a plain explanation so you know what exists and when to act.
The thing to understand first
A power of attorney can only be made while the person still has mental capacity to make it.
That is the whole point of it. It is a decision someone makes, in advance, about who they trust to act for them if they ever cannot act for themselves.
Once capacity is gone, it is too late. The family then has to apply to the Court of Protection instead, which is slower, more expensive and much more intrusive.
So the honest advice is: do it early, while it feels unnecessary. That is the only time you can.
What it actually is
A lasting power of attorney, or LPA, is a legal document. The person making it is the donor. The people they choose are attorneys.
An attorney does not have to be a lawyer. It is usually a partner, an adult child, or a trusted friend.
There are two types, and you need both
Health and welfare — covers where the person lives, their daily routine, their medical care, and whether to accept or refuse treatment. It can only be used once the person has lost capacity to make the decision themselves.
Property and financial affairs — covers bank accounts, bills, pensions, benefits, and buying or selling property. This one can be used while the person still has capacity, if they say so, which is useful if someone is physically unwell but mentally fine.
They are separate documents with separate fees. Many families set up only the financial one and discover too late that it gives no say over care decisions.
Life support is a specific choice
The health and welfare LPA has a section asking whether attorneys should have the power to accept or refuse life-sustaining treatment.
It is a deliberate yes or no. It is worth talking about properly rather than ticking quickly, and it is worth the donor saying out loud what they would want, so nobody is guessing later.
How you set one up
You can do it yourself on gov.uk without a solicitor. Many people do.
You will need:
- the donor's details, and each attorney's details
- a certificate provider — someone who confirms the donor understands what they are doing and is not being pressured. This can be someone who has known them for two years, or a professional
- people to be told when the LPA is registered, if the donor chooses
- signatures in the right order, which matters — get it wrong and it is rejected
Then it must be registered with the Office of the Public Guardian. There is a fee per document, and reductions or exemptions if the donor is on a low income or certain benefits.
Registration takes time — often several weeks or longer. An unregistered LPA cannot be used. This is the other reason not to leave it.
Choosing attorneys
You can appoint more than one. If you do, you choose how they act:
Jointly — they must all agree on everything. Safer, but if one dies or cannot act, the whole LPA can fail.
Jointly and severally — any of them can act alone. More practical, and the usual choice.
You can also name replacement attorneys in case an original one cannot act. Worth doing.
Choose people who are organised, honest, and likely to still be around. Being close to someone is not the same as being suited to it.
What an attorney must do
An attorney is not free to do as they like. They must:
- act in the donor's best interests
- help the donor make their own decisions wherever possible, rather than deciding for them
- follow the Mental Capacity Act 2005 and its code of practice
- keep the donor's money completely separate from their own
- keep records
- not take advantage of their position, or make gifts beyond small, customary ones
Capacity is decision-specific. Someone may be unable to manage complex finances but perfectly able to choose what to wear or where to live. An attorney must not take over more than is actually needed.
Abuse of an LPA is taken seriously. The Office of the Public Guardian investigates, and the Court of Protection can remove an attorney.
If capacity has already gone
If there is no LPA and the person can no longer make decisions, someone must apply to the Court of Protection to be appointed a deputy.
It is much harder. It costs considerably more, takes many months, requires an annual report and usually a supervision fee, and the court decides what powers to give — you do not choose.
The court is also more reluctant to appoint welfare deputies than financial ones, so families are often left with less say over care than they expected.
This is the situation an LPA exists to avoid.
Related documents worth knowing
Advance decision to refuse treatment (sometimes called a living will) — a legally binding refusal of specific treatments in specific circumstances. Different from an LPA and can work alongside one.
Advance statement — a written record of preferences, beliefs and values. Not legally binding, but it must be taken into account, and it helps everyone.
Ordinary power of attorney — temporary, for someone who has capacity but cannot deal with things for a while. It ends if capacity is lost, so it is not a substitute.
What carers should know
If you are a paid carer, you may be asked to witness or help with these documents.
Do not become an attorney for someone you are paid to care for. It is a serious conflict of interest.
Be cautious about acting as certificate provider or witness. If you have any concern that someone is being pressured into signing, or that they do not understand what they are signing, raise it — with the family, and if necessary with the council's adult safeguarding team. Financial abuse of older people very often runs through exactly these documents.
Where to go
- gov.uk/power-of-attorney — make and register an LPA
- Office of the Public Guardian — registration, and concerns about an attorney
- Age UK and Citizens Advice — free guidance
- A solicitor — worth it where there is property, a business, a complicated family, or any disagreement
The short version
Do it while it seems too early. Do both types. Register them straight away. Talk about what the person actually wants while they can still tell you.
Care World is a software platform. It does not give legal advice or hold legal documents on anyone's behalf. This guide is here so you know what exists and when it needs doing.