When should you get a power of attorney set up?

As soon as possible. There’s no such thing as ‘too early’, especially if you’re wondering when to get power of attorney for elderly parents.

Why?

You can only give someone power of attorney if you have the mental capacity to make that decision at that moment. If you wait, and something happens — an accident, or a condition like dementia becomes more serious — then it will be too late. 

For this reason, the best time to get a power of attorney set up is as soon as you think of it.

Like a power of attorney, it’s best to make your will long before it is needed. After all: when it comes to protecting your family, there’s no time like the present.

 

When do you get the power of attorney registered?

You can register the power of attorney as soon as the form is properly signed. Or you can wait until it is actually needed.

It’s best to register the power of attorney as soon as possible, however. That way, if there’s a mistake on the form, you can correct it before it’s too late to change. 

It can also take some time for the Office of the Public Guardian to get back to you — better to register it early and have it to hand when you need it.

 

When can you get a power of attorney activated?

If you’re one of the attorneys named on someone’s power of attorney, you may be wondering when you can actually step in. This depends on the type of PoA it is.

If it’s a health and welfare power of attorney, the donor has to have lost capacity

A health and welfare power of attorney lets you make decisions about someone’s medical treatments and day-to-day care. It can only ever be used if they are no longer able to make these decisions.

You can also only use the power of attorney to make specific decisions they can’t make: you need to let them do the things they can still manage for as long as possible.

If it’s a property and financial power of attorney, read it carefully 

In some cases, you can use a financial power of attorney right away. The power of attorney will say if this is the case.

If the PoA doesn’t say that, then you can only use it if the person who made it has lost the mental capacity to act. 

 

What happens when there is no power of attorney in place?

So, now you know when to get a power of attorney set up. But what if you are too late?

There is an alternative option you can use, if you need to help someone who has already lost the mental capacity to give their consent. It’s called becoming a deputy.

Becoming a deputy is more complicated and time-consuming than getting power of attorney. You have to be prepared for a great deal of scrutiny.

It’s also more costly. You need to pay a £365 application fee, plus £485 if the court decides your case needs a hearing. After you’ve been appointed as deputy, you have to pay an annual supervision fee. This could be £320 for general supervision or £35 for minimal supervision. You’ll also pay a £100 assessment fee if you’re a new deputy.

So, if it’s at all possible, it’s far better to get a power of attorney set up in good time.

Getting started guide, what needs to be completed and who is involved

Your Attorneys

You will need the name, address and date of birth for anyone you have  chosen to be an attorney(s).

These are the people who you will nominate to act on your behalf should you lose the Mental Capacity to make decisions for yourself in the future.   

Your attorneys will only be able to act for you once you have lost mental capacity to make decisions for yourself.  Your are able to choose up to 4 attorneys.

The people you have chosen should be people that you know well and trust to make decisions on your behalf and when they are making decisions for you, your attorneys cannot do as they please and must always act in your best interests.

All of your attorneys must be aged 18 or over, they must have the mental capacity to be able to make decisions and they must not have been made bankrupt or been subject to a debt relief order.

Replacement Attorneys

You will need the Name, address and date of birth for anyone you have chosen to be a replacement attorney(s).

Nominated attorneys are people who you wish to act as replacement attorneys.  Replacement attorneys are used to replace one of your attorneys should they be unable or unwilling to act in the future.

By choosing replacement attorneys you are assuring that your Lasting Power of Attorney continues to work as your replacement attorneys can step in and start making decisions.  You are able to choose up to 2 replacement attorneys.

A replacement attorney cannot be used to act temporarily whilst someone is not available or on holiday.

People to notify

You will need the Name and address for anyone you have chosen to be notified of your intention to register the Lasting Power of Attorney.

This section is optional but does allow you to inform people who are not naming as attorneys or replacement attorneys of your intention to register a Lasting Power of Attorney.

The people you need to choose in this section should be people that you know well and who would be willing to raise concerns or raise an objection to the Office of the Public Guardian about the registration if they believed your power of attorney application was fraudulent or if they believed you were being forced into making this application.

You are able to choose up to 4 people to be notified of your intention to register a Lasting Power of Attorney.

Certificate Provider

You will need the Name and address for the person you have chosen to act as your certificate provider.

Your certificate provider is someone who can confirm that

• You understand the significance of the Lasting Power of Attorney.
• You have not been put under pressure to make the Lasting Power of Attorney.
• There has been no fraud in making the Lasting Power of Attorney.
• There is no other reason for concern.
• In order to act as your Certificate provider the person you choose must be at least 18 years old and either:

A friend, colleague or someone you have known well for at least two years, they must be more than just an acquaintance.

Or your Doctor or Solicitor or someone with the professional skills to judge whether you understand what you’re doing and are not being forced to make a Lasting Power of Attorney.

The following people are not able to act as your Certificate Provider:

• Family members
• A Named Attorney or replacement Attorney.
• Your Named Attorney’s family, this includes the wife, husbands or civil partners of the attorney.
• An Attorney or replacement attorney named in any other Lasting Power of Attorney or Enduring Power of Attorney that has already been made.
• An unmarried Partner, boyfriend or girlfriend of the Donor or of any of the attorneys.

Your business partner or one of your attorney’s business partners.

Registering your lasting power of attorney

Before you start…

Just a bit of admin before we begin. Make sure you’ve taken care of the following before you register the lasting power of attorney:

• Read your LPA form and make sure everything is as it should be.
• Make sure sections 1-11 have been signed in the correct order.
• Send form LP3 to any ‘people to notify’ named in your LPA.
• Your ‘people to notify’ will have three weeks to contact the OPG if they have any concerns about the power of attorney.

How to register a power of attorney

A lasting power of attorney must be registered with the Office of the Public Guardian. The donor can register it or one of the attorneys.

You may have made the lasting power of attorney using Will Help’s online form (LP1F or LP1H), The process of registering the form after you receive it.

• Fill out sections 12-15 and sign.
• Put the form in an envelope with the fee, if paying by cheque (more on this below).
• Post the LPA to the Office of the Public Guardian at:

Office of the Public Guardian  

PO Box 16185 

Birmingham 

B2 2WH 

How much does it cost to register a power of attorney?

Unless you qualify for a fee exemption, registering a lasting power of attorney costs £82 per form. So, if you’re registering a financial LPA and a health LPA, you’ll pay £164.

You can pay by:

• Card over the phone — the OPG will contact you after receiving your form.
• Cheque — make it payable to ‘Office of the Public Guardian’ and write your name on the back and enclose with your form.

If you earn less than £12,000 a year, or you’re on certain income-related benefits, you may be able to apply for a fee reduction. To find out if you’re eligible and apply, download the application form here.

How long does it take to register a power of attorney?

A lasting power of attorney takes 8-10 weeks for the Office of the Public Guardian to register, if there are no mistakes.

But if there are mistakes, they will send the LPA back — and may ask you to pay an additional £41 fee and complete a fresh form all over again.

If the donor has already lost mental capacity, they can’t sign and the LPA can’t be registered. So it’s best to register a power of attorney sooner rather than later.

When is a power of attorney activated?

The rules on when you can start activating a lasting power of attorney vary depending on what type of LPA it is.

If it’s a health and welfare LPA, you can only activate it if the donor (that’s the person who made the LPA) has lost mental capacity and can’t make their own decisions. 

If it’s a property and financial LPA, you may be able to activate it as soon as it’s registered. The LPA will say whether this is the case. If not, then again you can only use it if the donor is unable to make decisions on their own.

You can find out how you can tell if someone has the mental capacity to make decisions here.

How to activate a power of attorney

So, once you’re ready, how do you activate a power of attorney? 

• Make a copy or two

The first thing you should do is get a certified copy of the LPA. A solicitor can make one up for you for £15 to £35. This means you can hold on to the original and send the copy out to whoever needs to see it.

• Figure out who to notify

Make a list of all the organisations and people that look after the donor. On the financial side, think about:

• Banks
• Mortgage providers / landlords
• Pension providers
• The department of work and pensions, if collecting a government pension or benefit
• HMRC
• Utility companies (water, gas, electricity, internet etc)
• Insurance providers
• Investment portfolio managers
• And if it’s a health and welfare LPA, consider:
  • Friends and family members 
  • Doctors and other healthcare professionals looking after them
  • Care workers, social workers and other social care staff
  • To take over from the donor, you’ll need to let these organisations and people know what’s going on. Some will want to see proof, which brings us to the next part…

• Notify people and organisations to start activating the power of attorney

While you can tell friends and family with a quick phone call, financial organisations (like banks) will need proof that you really do have power of attorney.

This is understandable — you wouldn’t want just anyone to be able to turn up and access your account. We recommend approaching the bank this way:

Visit the website to see what the process for activating a power of attorney is. Print off the relevant pages to bring with you in-branch, or save the link on your phone to show staff later.

Go in branch, bringing the printed pages, a valid ID (passport, driver’s license), and proof of address (a utility bill or a council tax bill).

If the staff at the desk haven’t heard of an LPA or don’t know how to activate a power of attorney, show them the page from the website or ask to speak to the person who looks after power of attorney questions.

Depending on the bank and any limits of your powers in the LPA, they may give you access to the donor’s account online or a debit card. If they aren’t providing you with the access you need to easily help the donor, don’t be afraid to push back. You’re not doing anything wrong.

That said! Remember, as an attorney you have a duty to look out for the donor’s best interests. If the bank sees any transactions that don’t look right they may report you to the OPG.