Power of Attorney

Martin Lewis: "I think Power of Attorney is more important than a will, because you're alive and your money could be locked away. This is really important. If you lose your faculties, do not assume relatives can access your money, not even to pay for your care or to pay the mortgage.

"That is what a Power of Attorney is for. So ask yourself, who would look after you? Who could access your funds? Who do you want to be in charge of ensuring your money works for you if you are no longer capable of doing so?"

Without a Power of Attorney, sorting your finances is generally much harder

Jeanette Kwakye (Martin's co-host): "Janet is saying this, 'Currently going through the Court of Protection.'"

Martin: "That's where you go if you haven't got a Power of Attorney to take control of someone's finances."

Jeanette: "'The Court of Protection to manage mum's affairs (she got dementia), so that she can pay her care fees. It's taken 18 months so far and no nearer a conclusion. Please tell your viewers that having no PoA causes family significant stress and stops family helping them.'"

Martin: "Court of Protection can be a nightmare. It can be very costly, it can be stressful, and it can leave your money in limbo. Power of Attorney is not perfect. There are problems with the Power of Attorney system, but it is better than that."

Jeanette: "I've got another question here for you from Diane. Diane’s saying, 'My partner has a pension pot. He's currently in a care home. I phoned the company to see about drawing on this, but because I haven't got a Power of Attorney, this can't be done. However, my husband is no longer able to deal with this as he has dementia. How can I get around this?'"

Martin: "Let's go to Melinda. I mean, the first thing is, at what point is he no longer capable of signing up for a Power of Attorney if he's got dementia?"

Melinda Giles (Managing Partner, Giles Wilson): "The test for capacity is time and decision specific, so it very much depends on how his capacity is at that time. The diagnosis of dementia is not, in of itself, evidence of a lack of capacity."

Martin: "You need a doctor and a solicitor to decide?"

Melinda Giles: "Ideally, they’re the best people to decide."

Martin: "Do it now because dementia gets worse. If it's beyond that point, then what?"

Melinda Giles: "Well, then you do have to apply for the Court of Protection for deputy to be appointed, even if you are a relative. You should start that process as soon as possible as well, because as you've described, it takes quite a long time, up to a year. It costs quite a lot of money, and during that time you cannot help your loved one."

Martin: "Roughly the same in Scotland?"

Austin Lafferty (Solicitor): "Similar in Scotland. It's called guardianship and it's the Sheriff Court usually you go to."

Martin Lewis: 'I have a Power of Attorney. No one's taking over my finances now'

Martin: "Thank you. Let me move on. Lasting Power of Attorney makes it easier for a nominated trusted friend or relative to take over when needed. I have one. No one's taking over my finances now. It's if and when needed. You don't need to lose control now. You can and should put safeguards in place. Just give me an example of the safeguards, Austin, if you wouldn't mind."

Austin Lafferty: "Well, you can have somebody notified when you need to engage the Power of Attorney. Also, don't forget the office of the Public Guardian Scotland – I think there's a similar office in England – is there almost as a kind of watcher and if something goes wrong or a relative thinks something's going wrong, they can report to the Public Guardian and they can investigate."

Martin: "So my wife would be my Power of Attorney if something happens to me. But I have three independent friends who would have to be notified and could object and say ‘no, he's still absolutely fine, this shouldn't be happening.’ There are safeguards in place, you need to make sure you do them.

"Registering costs £82 in England and Wales, it's £96 in Scotland, it's £180 in Northern Ireland. There are, in some cases, discounts if you're on a very low income."

Why should you get a health and welfare Power of Attorney?

Martin: "Now there are two types: a finance and property one and a health and welfare one. The names differ in different countries. In Scotland you can do them both together and amalgamate them. Look, I, of course, talk about finance and property. So I have with me David from Age UK. Why should people get a health and welfare one?"

David Broome (Technical Advice Support Officer, Age UK): "Yes, it's really important for people to consider because what that enables you to do is to appoint one or more persons to act for you if you're unable, you lack mental capacity to make a decision about your healthcare or about your social care or anything regarding your health and welfare. So it's a really important thing for people to think about in terms of planning for it."

Martin: "Because otherwise, I mean, doctors would do it. They can consult your family, but they don't have to listen. With a Power of Attorney, they get to make the decision, your loved ones possibly."

David Broome: "So your attorney would be making the decision for you if you lack capacity in that situation."

Martin: "Thank you so much, David. Now look, big picture. If you're unsure what to do, pay for help, especially if you've got complex affairs or you want complex rules to be put in place, or you've got lots of assets, frankly.

"Solicitor will cost £400 to £750 roughly to get a Power of Attorney. It isn't cheap. There's Which? Wills, a halfway house, where someone will draft it for you and a solicitor will oversee it, which may be able to work. So that's roughly where we're going on this."

Jeanette: "We've got Linda in the studio audience this evening. Linda, you were debating this weren’t you? You've got a question for Martin."

Linda: "Yes. I was wondering, is it easy to do the Power of Attorney yourself? And would you advise it?"

Martin: "How pedantic and picky are you? Seriously? Are you the type of person who's good at filling in forms, following rules, and thinking things through? Are you a professional person, possibly makes it easier?"

Linda: "Yes I think so."

Martin: "That is what you need to be generally. Look, first of all, I'm not talking about doing it for someone else. You need a solicitor if you're doing it for someone else who's losing capacity. We're talking about doing it for you?"

Linda: "Yes."

DIY Power of Attorney: The eight key checks

Martin: "I'm going to give you my tips here and you will understand why I asked if you're pernickety, a pedant. These are my tips for DIY doing Power of Attorney. Eight key checks. This is for England and Wales. It's more difficult to do in Northern Ireland, and Scotland's differences we’ll come to in a moment.

"51,000 Power of Attorneys were rejected last year. Be careful when filling it in. There are free guides online available. You'll be able to search and how to do this. Here are the tips.

"Use the right form. The two forms are similar. They tell you which one it is on the bottom right. People fill in the wrong form and therefore answer the wrong questions.

"Be specific about what are your preferences, your likes, and your instructions you must do. So let me explain it. A preference would be, 'I would like my attorneys to consult my doctor if they think I don't have the capacity to make decisions about my house.' Preference. An instruction, 'My attorneys must not sell my house unless, in my doctor's opinion, I can no longer live independently.' You need to think about these things beforehand, how you want it to work, and be specific.

"Now it's really weird this, they have to be in your best interests. Well you’d think that's obvious? No, some people want it to be in their children's best interests or their partner's best interests. No, by law, what you're writing has to be in your best interests.

"You can only ask them to do legal things. You can't request euthanasia in your Power of Attorney. It is not legal in this country at the moment. And they can't alter your will.

"Getting onto nitty gritty stuff now. Include all the information. Check it, including some unnecessary information so include middle names. Check every detail. Send every page back, even if they're blank. That can invalidate you if you get it wrong.

"Next, cross out and initial mistakes. Put your initials by it and put a cross through it. Do not delete them. You have to do this in black ink. If you put correction fluid you risk invalidating it. Cross out and initial – you see pernickety, aren’t I? You see where I'm going and why I'm saying all this.

"You need an impartial certificate provider who's willing to stand up and do this. Can't be related to you, can't be related to one of your attorneys, even by marriage. And then, people always get this one confused, by the way it works, you're going to need at least five people to sign it. They have to do it in the right order or it can be invalid.

"So, I'm not trying to put anyone off, I'm trying to guide you through it. But I want you to understand this isn't, ‘Ooh I’ll just fill it out like this’, it's not that. This is a job of work and following the instructions."

There are two types of LPA: one for property and finance and another for health and welfare. If you want both, you need to apply for each one separately and pay £164 in total (£82 each). Most sections of the form are similar, so people often use the wrong one.

You can check that you're using the correct form by looking at the bottom right of the page, as shown below:

In section seven, you'll be asked to fill in your instructions and preferences. You don't have to complete this section – instead, you can just talk to your representatives and explain how you'd like them to act for you.

But if you do choose to fill this out, make sure you understand the difference between preferences (how you would like your representatives to act) and instructions (how they must act).

An example of a preference is: "I would like my attorneys to consult my doctor if they think I don't have the mental capacity to make decisions about my house." To write this as an instruction, you could say: "My attorneys must not sell my home unless, in my doctor's opinion, I can no longer live independently."

Below are some tips for ensuring your preferences and instructions are workable – if you're unsure about anything, you may want to seek legal advice – see the first step of this guide for further info:

✅ Make sure everything you're asking your representative(s) to do is legal. For example, you can't give instructions or preferences about euthanasia or assisted suicide. 

✅ Give instructions or preferences that are in your best interest. You can't tell your representative(s) to act in the best interests of anyone else, including your partner or children, as they must act for you alone.

❌ You can't tell or ask your representative(s) to change your will.

❌ If you've asked representatives to make decisions together – you can't then give instructions for them to act on their own elsewhere in your LPA. 

This includes writing postcodes where asked for and including middle names where a full name is required.

You also need to ensure you include every page of the application (even ones you've left blank).

Your LPA should be completed and signed with a pen – preferably black.

Using a pencil or correction fluid on your forms is not allowed, so if you make a mistake, you'll need to cross it out and write a correction, along with your initials, as close to the box as possible. See the example below:

You'll need to get your LPA application signed by an impartial person – known as the certificate provider – who can verify that you understand what it means. This person MUST be:

✅ Aged 18 or over.

✅ Either:
– a person who has known you well for at least two years, OR:
– a professional, such as a GP, solicitor or social worker.

Your certificate provider CANNOT be:

❌ One of your representatives.

❌ Related to you or any of your representatives, including by marriage.

❌ An employee of you or any of your representatives.

❌ Anyone who works at or runs the care home where you live.

❌ An unmarried partner, boyfriend or girlfriend of you or any of your representatives.

For further guidance on choosing a certificate provider, see Gov.uk.

There are at least five separate signatures needed on an LPA before it's sent off. Here's what each person needs to do – make sure you follow this order:

1. The person the LPA is for, known as the 'donor' (and a witness):

✅ Fill out sections one to seven, covering yours and your representatives' personal details, how you want them to make decisions and when they can start acting on your behalf.

✅ Fill out and sign section nine in the presence of a witness (this can't be your representative but it can be the certificate provider). Your witness must then sign the form and provide their full name and address where asked.

✅ Sign any continuation sheets for sections one and two that were used. This must be done on the same date as you signed section nine.

2. The certificate provider:

✅ Fill out and sign section ten (AFTER the donor and their witness have signed).

3. The representative (and a witness):

✅ Complete and sign section 11 in the presence of a witness (this can't be the donor but it can be the certificate provider). Your witness then signs and writes their full name and address where asked.

If there are multiple representatives, each one must sign. Representatives can witness each other's signatures, but the donor cannot act as the witness.

4. Either the donor or representatives (but not both):

✅ Fill out and sign sections 12 to 15. This covers who will receive a copy of the LPA and how you'll pay the application fee.

Once you register the forms, in most cases the OPG just rubber-stamps the agreement, though it looks further into a small proportion of cases. The OPG aims to complete registrations within eight to 10 weeks.

People then have five weeks to object if they think the person making the LPA was pressurised or lacked capacity when they filled in the forms. The Court of Protection decides if the objection is justified.

If the person who is making the Power of Attorney objects, the process stops completely. The only way to register the LPA would be to apply to the Court of Protection to establish they did not have the capacity to object.

The Power of Attorney is activated as soon as it's registered, so the attorney will be able to make decisions on behalf of the donor straightaway, unless otherwise specified in the application.

Representatives have a duty to act in the donor's best interests and only make choices the Power of Attorney's terms allow them to make. If you are concerned a representative is abusing their role, report a concern.

Together, you could consider a third-party mandate. This lets a bank give someone access to another's account. The account holder specifies what the other person can and can't do with the account, so they must still be able to decide what to do with their money. The application procedure varies between banks. Call and ask how to apply.

In certain circumstances, the Department of Work and Pensions (DWP) can appoint a friend or relative or a representative of an organisation (like a solicitor or member of the council) to receive someone else's benefits and to use that money to pay expenses such as household bills, food, or accommodation. Apply via the DWP.

This usually happens when the individual has lost capacity, or when they have capacity but an exceptional, severe physical disability makes it hard for them to collect benefits.

Consider switching to paying bills by direct debit. These automatic payments can help people simplify their finances, helping to budget and ensure bills get paid.

They should (possibly with your help) keep checking bank statements, making sure there's enough cash in their account, or the bank may charge them.

You even get a discount from many companies for paying this way. A warning though: while direct debits for gas and electricity bills, home phone and broadband can save you money, home and car insurers charge interest for doing so.

If someone you know is in severe debt trouble, encourage them to seek help from a non-profit debt-counselling agency immediately.

This depends on when you paid for the Power of Attorney, and whether you paid the full registration fee or the half-price fee:

If you registered for both types of Power of Attorney – both health and welfare, and property and financial affairs – you can claim for both, meaning a refund of up to £108.

Some people on certain means-tested benefits will not have paid to register a Power of Attorney and so will not be eligible for the refund.

You can make a claim for a fee paid to register a Lasting Power of Attorney in England or Wales between 1 April 2013 and 31 March 2017. You can claim whether you were the donor (the person who made the Power of Attorney) or the attorney (the person appointed by the donor), though the refund will be paid to the donor. You can claim even if the Power of Attorney's been used. See details on Gov.uk.

• You can call the Office of the Public Guardian on 0300 456 0300.

• Apply by email to poarefunds@justice.gsi.gov.uk

• By post to POA Refunds Team, Lower Ground Floor, Office of the Public Guardian, PO Box 16185, Birmingham, B2 2WH.

To apply, you don't need the Power of Attorney document itself, but you will need:

• The donor's name, address and date of birth.

• Their UK bank account number and sort code.

• The name of one of the attorneys on the Power of Attorney.

Here are the other key need-to-knows:

• You only need to make one claim for each donor – even if you've made multiple Powers of Attorney.

• If your claim is refused and you want to appeal the decision, you can call the refunds helpline.

• If the donor doesn't have a UK bank account or you're a court-appointed deputy, you'll have to apply by phone.

• You can also claim for an Enduring Power of Attorney if you registered it in the relevant period. The Lasting Power of Attorney replaced the Enduring Power of Attorney on 1 October 2007, but it's possible someone could have drafted the latter before the cut-off date and registered it during the refund period - and so would be eligible.

If the donor has died, you can still claim. You'll need to send a copy of the donor's death certificate and will, or a grant of representation such as a grant of probate or letter of administration, along with your contact details.