If someone grants you power of attorney, you have the power to make certain decisions, such as financial and/or housing decisions, for that person. They are your donor, and you are their attorney. In most cases, you can only use your power of attorney if the donor becomes unable to make their own decisions.

If you’re concerned about whether someone you care about has lost the ability to make decisions for themselves, or whether they may lose that ability in the future, you may be interested in getting power of attorney for them yourself. This guide will help to answer your questions about how to get power of attorney.

Can someone get power of attorney without consent?

No. There’s only one method for how to get lasting power of attorney for someone: they must have appointed you as their attorney when they had the capacity to make decisions.

If someone currently has the mental capacity to make decisions, but they may lose that capacity in the future, they will need to appoint you as their attorney before that time comes.

If someone has already lost their mental capacity, they can no longer legally appoint someone as their attorney. Therefore, if they haven’t previously appointed you as their attorney, it’s impossible to get power of attorney for someone who can’t currently make decisions.

There are a couple of ways you can make decisions for someone who has no attorney and can no longer make decisions themselves:

  • For a one-off decision, you can apply to the Court of Protection.
  • For the authority to make multiple decisions, you can apply to become a deputy. This is more expensive than getting power of attorney and has more limited powers, but it’s an alternative that exists if someone has lost mental capacity and doesn’t have an attorney.

What do you need to get power of attorney?

To get power of attorney, the main thing you need is a lasting power of attorney (LPA), created by the person you’ll be acting as the attorney for and naming you as their attorney. This will need to be registered with the Office of the Public Guardian. We explain the process of creating an LPA in our guide ‘What is a lasting power of attorney?

The LPA must be created while the donor still has mental capacity. It can be registered after the donor loses mental capacity, but it’s better to register it while they’re still capable of making changes, in case there turns out to be a problem with the forms.

You may be appointed using a health and wellbeing LPA, a property and financial affairs LPA, or both.

A health and wellbeing LPA can only be used after the donor has lost the capacity to make their own medical and living decisions.

A property and financial affairs LPA can be used as soon as it’s registered, if you have permission from the donor. Otherwise, it can be used after the donor loses the ability to make decisions.

Specific LPAs can give different powers, so check the LPA that’s been registered carefully to make sure you understand what you’re allowed to do.

 

How to apply for power of attorney

If you’re interested in assigning someone else to be your attorney, our ‘What is a lasting power of attorney?’ advice page includes a step-by-step guide to setting up power of attorney.

If, on the other hand, you’re interested in how to obtain power of attorney yourself, here are the things you need to know.

Firstly, as mentioned, the person you want to act on behalf of must have appointed you as their attorney already, by filling out the appropriate Office of the Public Guardian forms to set up a lasting power of attorney (LPA). These forms will need to be registered before they’re valid. If the forms have been filled in, signed and dated but haven’t yet been registered, you can register them yourself.

To start using a property and financial affairs LPA, you’ll need to register the power of attorney with the donor’s bank and other financial organisations; our page ‘Activating a power of attorney, made simple’ includes a list of organisations you may need to contact. Different organisations have different processes for this, but you’re likely to need proof of identity and a copy of the LPA. You’ll usually be able to find the details for how to register a power of attorney on the organisation’s website, or by contacting them directly.

To start using a health and welfare LPA, you’ll need to explain that you’re taking over as the attorney to the donor’s friends, family members, doctors, care workers etc.: anyone who’s invested in the donor’s wellbeing or in a position to carry out the decisions you make. They may want to see a copy of the LPA.

Remember that, in the case of all welfare LPAs and some financial affairs LPAs, you can only begin to take action as the attorney if the person who made the LPA is no longer mentally capable of making their own decisions, for example because they cannot understand information presented to them. You can’t decide someone has lost mental capacity just because they make what you would consider a bad decision.

 

Acting as someone’s attorney

Having power of attorney doesn’t give you free rein to make any decisions you like. You need to act in the donor’s best interests, respect their wishes and bear in mind who they are as a person (so, for example, you can’t donate to a church on their behalf if you don’t believe they would want to make that donation). If challenged, you’ll need to be able to show that you’ve taken your responsibilities seriously.

When you’re making a decision on the donor’s behalf, talk to the donor about it. Even if they’re considered to have lost mental capacity, they may still have an opinion on what you intend to do.

When you’re using your power of attorney, consider your decisions carefully and keep a record of everything you do on your donor’s behalf.

The UK government offers detailed guides to how to act as an attorney.

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