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Your options for power of attorney if you still have mental capacity

Powers of Attorney

A power of attorney is a document by which one person (“donor” in England & Wales and “granter” in Scotland) gives another person (“attorney”) the power to act on his/her behalf and in his/her name.

Power of Attorney types differ due to different laws in England & Wales and Scotland.

General / Ordinary Power of Attorney (UK)

Allows you to appoint trusted family or friends, your attorneys, to help manage all or some of your accounts. A General Power of Attorney (GPA) is usually best for short-term support while you’re still able to make your own financial decisions. If help will be needed for a longer period of time, a Lasting Power of Attorney may be more suitable. A GPA might be the right option for you if you have a physical illness, injury or are abroad for a long period.

A GPA shouldn’t be used if you are diagnosed with a mental health problem which can lead to mental incapacity.

You can write your own GPA, as long as a specific wording is used, and the document is signed and witnessed correctly. You may wish to seek advice from a solicitor or from your local Citizens Advice Bureau to ensure that the correct wording has been used. GPAs do not prohibit you from making / authorising withdrawals from your account(s) and may be revoked by way of your written request.

Lasting Power of Attorney (England & Wales)

Registered with the Office of the Public Guardian, a Lasting Power of Attorney (LPA) allows you to appoint trusted family or friends, your attorneys, to support and help manage your financial affairs for your best interests. Unlike a General Power of Attorney, this will continue beyond such time as you can no longer make decisions for yourself.

Once you’ve chosen someone to be your attorney, you need to create and register your Lasting Power of Attorney documents. The forms can be complicated, so you may want to ask a solicitor to help you. Once you’ve applied, it takes around 9 to 10 weeks to register.

The process you need to follow and the forms you need to complete can be found here:

In England and Wales – Register a Lasting Power of Attorney with the Office of the Public Guardian

You need to have the LPA signed by a certificate provider. This is someone who confirms that you understand what the LPA is and haven’t been put under any pressure to sign it. They must be someone you know well or a professional such as a doctor, social worker or solicitor, but can’t be a family member.

The LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. There is a fee of £82 to register your LPA. If you’re on a low income, you may be eligible for a 50% discount, and if you’re receiving certain benefits you won’t have to pay anything at all.

You must register the LPA while you have the mental capacity to do so. It can’t be used during the registration process, which takes around 9 to 10 weeks. You can contact the OPG to find out if your LPA has been registered. If you lose mental capacity but signed the LPA while you still had capacity, your attorney can register it for you.

Enduring Power of Attorney (England & Wales)

This type of attorney was used before 1 October 2007. Whilst new ones can no longer be made, they are still in existence and remain valid provided they have been registered with the Office Of Public Guardian (OPG) if mental capacity is lost. It’s the attorney’s responsibility to register the Enduring Power of Attorney (EPA) if they believe you are no longer capable of looking after your affairs. By registering the EPA, the attorney takes over full responsibility of managing your property and affairs, including your accounts. If you feel capable of managing some aspects, it’s up to the attorney to decide what you can manage.

If the EPA has not been registered, and you lose your mental capacity, your attorney can apply to continue using the EPA by registering it with the OPG. There is a registration fee which you can find more about from the OPG.

Continuing Power of Attorney (Scotland)

A Continuing Power of Attorney (CPA) gives someone power over your property and finances. The power may start immediately and can come into effect while you have capacity and will continue in the event of your mental incapacity or it may begin at a later date, if for example you later become mentally incapable and a statement to this effect must be included in the CPA document if this is the case. It’s your choice when the CPA will begin.

The powers can vary widely. They can be very limited or very wide. Consequently the CPA must be checked to ensure that it gives the attorney adequate powers for what you want them to be able to do. For example:

  • The attorney must be granted power to operate a bank account before they can gain access to your account;
  • The power to ‘operate’ a bank account does not imply a power to open or close a bank account;
  • If there is no power to ‘borrow’ then the attorney can’t obtain an overdraft.

Once you’ve chosen someone to be your attorney, you need to create and register your Continuing Power of Attorney (CPA) documents. The forms can be complicated, so you may want to ask a solicitor to help you. Once you’ve applied, it takes around 9 to 10 weeks to register.

The process you need to follow and the forms you need to complete can be found here:

Scotland – Register a Continuing Power of Attorney with the Office of the Public Guardian Scotland

You can fill out the forms yourself, or with the help of a solicitor or local advice agency. Taking professional advice can prevent problems later on, especially if you’re unsure of the process or your affairs are complex.

Have the CPA signed by a certificate provider. This is someone who confirms that you understand what the CPA is and haven’t been put under any pressure to sign it. They must be someone you know well or a professional such as a doctor, social worker or solicitor, but can’t be a family member.

The CPA must be registered with the Office of the Public Guardian (OPG (Scotland)) before it can be used. There is a fee of £77 to register your CPA. If you’re on a low income or if you’re receiving certain benefits you may be eligible for a fee exemption.

You must register the CPA while you have the mental capacity to do so. It can’t be used during the registration process, which takes around 9 to 10 weeks. You can contact the OPG (Scotland) to find out if your CPA has been registered. If you lose mental capacity but signed the CPA while you still had capacity, your attorney can register it for you.

Who Can Be a Power of Attorney? Find out more
Guidance on who can be a power of attorney and how to choose
What Can a Power Of Attorney Do? Find out more
Find out what a power of attorney and other types of representative can do with current accounts, savings accounts and mortgages.
How to Register Find out more
How to register a power of attorney or court order with us
  • What is mental capacity?

    In England and Wales mental incapacity is governed by the Mental Capacity Act 2005. Mental incapacity is defined in the Act to arise ‘because of an impairment of, or a disturbance in the functioning of, the mind or brain’. The assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made and not their ability to make decisions in general.

    The Act also provides that the impairment or disturbance does not have to be permanent. A person can lack capacity to make the decision at the time it needs to be made even if the loss of capacity is partial, temporary or their capacity changes over time.

    Mental capacity means being able to understand a specific decision, retain information for long enough to make it, weigh up different choices and communicate the decision in any way possible.

    The starting assumption must always be that the person has the capacity to make a decision, unless it can be established that they lack capacity. A person may also lack capacity to make decisions about one issue but not others.

    Mental capacity can change over time and someone may not be able to make a decision at one time, and then be able to make the same decision at another time.

    Someone with mental capacity is able to communicate decisions through speech, signs, gestures or in other ways. Taking time to understand or communicate may be mistaken for a lack of mental capacity, but having dementia, for example, doesn’t necessarily mean someone can’t make any decisions themselves.

    If someone is having difficulty communicating what sort of decision they want to make, an attempt should always be made to overcome that difficulty and help the person decide for themselves.

    Assessment of mental capacity is a medical function - our staff, no matter how well they know you as a customer or your family and friends, aren’t medical professionals and so can’t advise on someone’s mental capacity.