Ways that someone can manage your affairs on a temporary basis
If the only temporary power you want to give someone is the power to operate a bank account on your behalf, you should just write to your bank. Many banks have their own form, called a form for third party mandate, which they will ask you to complete and return to them.
Social security benefits
If you are temporarily unable to collect your benefit and it is normally paid into your bank or building society account, you should write to your bank or building society, asking them to give temporary power to someone else to operate your account (see above). If your benefit is normally paid by cheque, you can fill in the back of the cheque to allow someone else to cash it for you. If you want the agent to cash a benefit cheque for you on a regular basis, you should contact the office that deals with your benefits payments to let them know.
General financial affairs
If you want someone to handle your financial affairs for a temporary period, for example while you are on holiday or while you can supervise what they do, you need an ordinary power of attorney (see under heading Ways that someone can manage your affairs on a longer term basis). A power of attorney is a legal document that authorises one or more people to handle your financial affairs, including property, shares and money, either generally or in relation to specific items.
Ways that someone can manage your affairs on a longer term basis
Ordinary power of attorney
If you want someone to look after your financial affairs for a longer period of time, you can grant an ordinary power of attorney, which can relate to all your affairs or only to specific matters. You should not use an ordinary power of attorney if you have been diagnosed as having, or if you think that you may develop, any mental illness or degenerative disease that can lead to mental incapacity. This is because an ordinary power of attorney automatically comes to an end if you lose your mental capacity. If you have a physical illness or an accident resulting in physical injury, and you want someone else to look after your affairs, you should create an ordinary power of attorney.
Enduring power of attorney
If you have been diagnosed as having, or if you think that you may develop, a mental illness, for example, severe schizophrenia, or a degenerative brain disease leading to mental incapacity, for example, Alzheimer's disease, and you want someone else to manage your financial affairs either now or in the future, you should use an enduring power of attorney. Unlike an ordinary power of attorney, an enduring power of attorney can come into effect or continue in force after you lose your mental capacity. It will come into effect immediately if you do not specify in it that it should not take effect until you lose your mental capacity.
If you do not think that you are likely to lose your mental capacity, or if you do not want a power of attorney to continue if that should happen, you should use an ordinary power of attorney (see above).
How someone can manage your affairs in the future
If you are worried about what will happen to your financial affairs in the future if you have an accident or become ill and you no longer have the mental capacity to look after your own affairs, you can draw up an enduring power of attorney that will only come into effect if you lose your mental capacity. This means that you can decide who is to have responsibility for your property and money if you lose your mental capacity too suddenly to make arrangements at the time. If you have not already drawn up an enduring power of attorney and you lose your mental capacity, an application has to be made to the Office of Care and Protection, (see under heading How you can manage the affairs of someone who needs help). This process can be time consuming and expensive. It also means that you have no say in deciding who will look after your affairs as the Office of Care and Protection, will decide.
Who can grant a power of attorney
Someone who grants a power of attorney is called a donor. In order to be a donor, you must have mental capacity and you can only grant the power of attorney to do things that you have the right and capacity to do yourself.
Only the donor can make the decision to create a power of attorney and if you instruct a solicitor or advice worker to draft one for you, the solicitor or advice worker should only accept instructions or authorisation from you, whether in person or in writing, and not, for example, from the person who is to become your attorney.
A child under 18 can be a donor of an ordinary power of attorney, but a child can only give an attorney the power to do things that they can legally do as a child.
If you are, or if you have, a child who is thinking about granting a power of attorney, you should always see a solicitor. You can obtain details of local solicitors from, for example, at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
Who can be an attorney
Anyone who has mental capacity can be an attorney. However, anyone who is, or who has been, bankrupt, cannot act as an attorney under an enduring power of attorney. If an attorney becomes bankrupt, the enduring power of attorney is revoked.
Trust corporations such as banks can be an attorney and professional attorneys can charge for their services.
A donor can appoint more then one attorney. If the attorneys are appointed as joint attorneys they must always act together. The advantage is that this makes fraud or improper acts by one attorney less likely. The disadvantage is that the whole power of attorney comes to an end if a joint attorney dies or becomes mentally incapable.
If the attorneys are appointed as joint and several attorneys, they may either act together or individually, and the power of attorney will continue in force if anything happens to one of the attorneys. The signature or action of one attorney is as valid as if they were the sole attorney.
Responsibilities of an attorney
When you are appointed as an attorney, you are placed in a position of trust and you must act in the best interests of the donor, using their money to meet the donor's best interests. As an attorney, you can only do the things the donor has authorised you to do, and you cannot delegate any duties unless the donor has authorised delegation. An attorney must keep separate up-to-date accounts of the donor's affairs. When you are acting on the donor's behalf and have to sign any documents, you should sign your usual signature and add, beneath the signature, the words Attorney for ... (donor's name).
You should take the power of attorney to banks, building societies or wherever the donor has assets to prove that you have authority to act on the donor's behalf.
How to grant a power of attorney
Ordinary power of attorney
An ordinary power of attorney can be used to authorise an attorney to carry out all tasks for the donor. This gives the attorney wide-ranging powers. Alternatively, the donor can use an ordinary power of attorney to grant limited powers to an attorney, for example to buy and sell property, to change investments or to enter into a contract. A limited power of attorney must be drafted in very clear terms to ensure that the powers are limited to those authorised by the donor.
There is a standard form of words to use for an ordinary power of attorney. If you want to grant an ordinary power of attorney, you should contact an experienced adviser, for example, a solicitor or at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
Enduring power of attorney
An enduring power of attorney must be created in a prescribed format. There are risks involved in creating an enduring power of attorney, and you should always seek advice from an experienced adviser before you make your decision. You can make more than one enduring power of attorney appointing different attorneys to do different things. You can give the attorney a general authority to carry out all transactions with immediate effect. Alternatively, you can set limits on the type of transactions you authorise the attorney to carry out on your behalf, for example you can state that the attorney should only deal with your money or your property, whether now or in the future.
You can also specify that the power should not come into effect unless you become mentally incapacitated, and you can require that your attorney produce medical evidence from one or more doctors before the power comes into effect. If you create the document some years before you might want to use it, you may wish to tell your bank and any other relevant institution that you have created it, although your attorney may not be permitted to use it until it has been registered, if it contains that restriction. This is because some banks and building societies do not like to accept an enduring power of attorney that was created several years before it came into effect.
You should discuss with an experienced adviser the best ways to avoid abuse of your enduring power of attorney. These include telling other people that you have created an enduring power of attorney, appointing more than one attorney, and specifying in the enduring power of attorney that it can only be used after you have lost your mental capacity.
If you lose your mental capacity, your attorney must apply to register the enduring power of attorney. The attorney has no authority to act for you until the application has been made.
If you want to grant an enduring power of attorney, you should contact an experienced adviser, for example, a solicitor or an adviser at a Citizens Advice Bureau. To search for details of your nearest CAB, including those that can give advice by email, click on nearest CAB.
You do not want a power of attorney any more
If you have created a power of attorney and no longer want it to have effect, you can cancel it. If you have created an enduring power of attorney you can only cancel it if you still have mental capacity. If your enduring power of attorney has been registered at the Office of Care and Protection, it can only be cancelled with the consent of the Office of Care and Protection.
If you cancel a power of attorney, you should inform your attorney in writing. You should also tell all the banks and anywhere else that you have invested money that the document has been revoked.
If you decide to create a new power of attorney, you should add a clause to the new one stating that you revoke the previous power of attorney or that you revoke all powers of attorney made previously by you.
How you can manage the affairs of someone who needs help
If you know someone who is, or is becoming, mentally confused, and you want to help by managing their financial affairs, the steps you should take depend on whether they have already created an enduring power of attorney.
Registering an existing enduring power of attorney
If someone who has lost, or is losing, their mental capacity has created an enduring power of attorney and you are the nominated attorney, you may not use, the enduring power of attorney until you have applied to register it at the Office of Care and Protection. After you have applied to register the enduring power of attorney, but before the registration actually happens, the Office of Care and Protection has to wait to see if anyone objects. You will have limited authority to maintain the donor and prevent loss to their estate.
Before you apply to register the enduring power of attorney, you should give notice of your intention to register to the donor and to the donor's nearest relatives. This is because the donor and their relatives are entitled to object to the registration of the power or to you as the attorney.
You must use standard forms to notify the donor and relatives and to apply to register the enduring power of attorney, and a fee is payable. You should contact the Office of Care and Protection for details of forms, fees, procedures and deadlines for registration (see under heading Further information).
If there are no objections to the registration, the office of Care and Protection will check that everything is in order and, if so, register the power of attorney and return it to you. The enduring power of attorney will be stamped as registered and carry a court seal. You can then make binding decisions about the donor's financial affairs and you must act in the best interests of the donor at all times.
There is no enduring power of attorney
If someone who is, or is becoming, mentally incapacitated has not already created an enduring power of attorney, and you wish to manage their financial affairs, you will need to apply to the Office of Care and Protection to be appointed as a controller. You should contact the Office of Care and Protection, who will send you the relevant forms and information on how to apply, including details of fees (see under heading Further information).
If the Office of Care and Protection appoints you as a controller, you will take control of the person's financial affairs and property and act on their behalf. You will be required to open a bank account in your own name as controller and you will need the permission of the Office of Care and Protection before making any decisions about capital, such as the incapacitated person's home or other property. You will usually be required to present yearly accounts of the person's finances.
In certain cases, where the incapacitated person's assets are valued at less than £16,000, you can usually apply to the Office of Care and Protection for directions that, if granted, mean that the Office of Care and Protection does not need to appoint a controller. This is a less formal arrangement, but every situation still needs to be fully assessed individually by the Office of Care and Protection in order to decide whether directions would be appropriate. Contact the Office of Care and Protection, for further details and the appropriate forms.
Office of Care and Protection
Room 2.2A Second Floor
The Royal Courts of Justice
PO Box 410
Tel: 0300 200 7812
Fax: 028 9032 2782