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You can give someone else or more than one person (called your ‘attorney’) the legal power to manage your affairs for you. This is known as giving them ‘power of attorney’. This can be a temporary or long-term arrangement.
It’s likely that you’ve been involved in making decisions about your care and any financial implications throughout your experience of cancer. But there may come a time when it becomes difficult for you to manage all your affairs, or when you become unable to make or communicate particular decisions. There are various ways you may be able to arrange for someone you trust to make decisions about your financial affairs and care when the time comes.
This could include steps such as:
Our financial guides| can help if you’re unsure about what steps might be best for your individual situation.
You can give one or more other people (called your ‘attorney’ or ‘attorneys’) the legal power to manage your affairs for you. This is known as giving them ‘power of attorney’. This can be a temporary or long-term arrangement. Most people appoint their husband, wife or civil partner as an attorney, or an unmarried partner, another family member or a friend. It’s essential that it’s someone you trust completely.
You must have mental capacity at the time you create a power of attorney. The Mental Capacity Act 2005 defines ‘a person who lacks capacity’ in relation to a particular situation. It defines them as someone who, when faced with that situation, is unable to make a decision or take a particular action for themselves, at the required time.
You may be judged as lacking mental capacity if you’re unable to make a decision for yourself because of a temporary or permanent injury, a disorder or a condition that affects the way your mind works. You may be judged unable to make a decision if you can’t:
You may want to give someone else power to manage your property and financial affairs for a set period - for example, while you’re in hospital for a longer period of time or away on a long holiday. You can do this using an ordinary power of attorney.
It can be a general power, where your attorney has power over all of your property and financial affairs. Alternatively, it can be a specific power to deal with just some aspect of your affairs, such as running your bank account or selling a property.
Depending on the situation, it may be simpler to set up a third-party mandate for a bank account, or appoint an agent (someone you know and trust) to collect your state benefits.
An ordinary power of attorney doesn’t have to be registered with any official authority. But it does have to be written in a certain way, so you’d need a solicitor’s help. It stops when the set period ends, or earlier if you cancel the power.
An ordinary power of attorney also comes to an end if you lose your mental capacity. It’s therefore not the right power to grant if you anticipate that this could happen to you.
To give someone permanent power to take over your affairs, you use a different type of power of attorney. This power comes into effect, or remains effective, if you lose mental capacity.
The types and details of power of attorney vary across the different nations of the UK. Here, we explain how it works in each nation.
A long-term power of attorney granted on or after 1 October 2007 is called a lasting power of attorney (LPA). There are two types. You can grant either or both, and appoint different attorneys in each:
This gives your attorney the power to manage all of your financial affairs including buying and selling property and investments, running your bank and savings accounts, and managing your tax affairs.
This gives your attorney the power to make decisions about your welfare, for example, your medical treatment and whether you should go into a care home or hospice. This can be a general power over all decisions or restricted to some specific areas. You may separately make an advance decision to refuse treatment|, often called a ‘living will’. This gives legally binding instructions about the circumstances in which you would or would not want to receive life-prolonging treatment.
If you wish to make both a health and welfare LPA and an advance decision to refuse treatment, it’s very important to coordinate the two.
An LPA can’t be used until it has been registered with the Office of the Public Guardian. There is a fee (£130, or £260 if you’re registering both types of LPA). However, if you are receiving certain state benefits you may be exempt from any fees.
Your attorneys must follow a set of rules when making decisions for you once you’ve lost the capacity to decide for yourself. This is to ensure that they act in your best interests.
You can cancel an LPA at any time while you still have mental capacity. After you lose capacity, it can be cancelled only with the agreement of the Court of Protection.
If you are granted a long-term power of attorney before 1 October 2007 in England or Wales, it will be an enduring power of attorney (EPA). See the section about Northern Ireland for brief details of how these work. Although you can no longer grant an EPA in England and Wales, an existing EPA can still be registered and used. An EPA only applies to your financial affairs.
Your attorney cannot make decisions about your health and welfare under an EPA. You would need to set up a health and welfare LPA if you wanted to give someone the power to do this.
In Scotland, you can set up either or both of the following long-term powers of attorney:
This gives your attorney the power to manage your financial affairs. It’s similar to the English and Welsh property and financial affairs LPA.
This gives your attorney the power to make decisions about your welfare, for example, your medical treatment and whether you should go into a care home or hospice. It’s similar to the English and Welsh health and welfare LPA. You may separately make an ‘advance decision’ that gives legally binding instructions about the circumstances in which you would or would not want to receive medical treatment, including treatment that could prolong your life.
These powers of attorney can’t be used until they have been registered with the Office of the Public Guardian (Scotland), and there is a fee (currently £70). For information about fee exemptions if you’re receiving certain state benefits, visit the Office of the Public Guardian |website.
You can cancel these powers of attorney at any time while you still have mental capacity. If you lose capacity, they can be cancelled only with the agreement of a court.
In Northern Ireland (and in England and Wales before 1 October 2007), you can set up an enduring power of attorney (EPA). This is similar to the property and financial affairs LPA for England and Wales. It gives your attorney the power to manage your financial affairs. This can be a general power covering all your money matters, or specific powers restricted to just some areas.
While you still have mental capacity, an EPA can be used without being registered, in a similar way to an ordinary power of attorney (see the section above). But if you begin to lose mental capacity, your attorney must immediately register the EPA with the Office of Care and Protection (or the Public Guardian in the case of an EPA in England and Wales made before 1 October 2007). There is a fee for registration (£115 in Northern Ireland). In cases of hardship, requests to postpone or cancel this fee will be considered - for more information, contact the Office of Care and Protection|.
You can cancel the EPA at any time before it’s registered. After registration, it can be cancelled only with the agreement of a court.
In Northern Ireland, there is no power of attorney to give someone the right to make welfare decisions on your behalf. For more information about this, contact the Office of Care and Protection.
You can only grant a power of attorney if you still have mental capacity. If that’s no longer the case, someone else - typically a partner, other family member or close friend - can apply to be appointed by the authorities to act for you.
Depending on where in the UK you live, they may be appointed as a deputy, receiver, guardian or controller. The details of what these mean vary across the different nations of the UK.
In England and Wales, your close relative or friend can apply to the Office of the Public Guardian to be appointed as your deputy (or receiver if the application was made before 1 October 2007).
In Scotland, they can apply to the Office of the Public Guardian (Scotland) to act as your guardian. The Office of the Public Guardian also runs a scheme called Access to Funds. Through this scheme, people can apply to access funds belonging to an adult who is no longer capable of accessing them, to pay for bills or anything that the adult regularly paid for. For more information, visit the Office of the Public Guardian| site.
In Northern Ireland, they can apply to the Office for Care and Protection to be appointed as your controller.
A deputy, receiver, guardian or controller has basically the same powers and duties as an attorney to manage your property and financial affairs for you.
If there is no one who can act for you, the authorities can appoint one of their own officials to manage your affairs.
Content last reviewed: 1 April 2013
Next planned review: 2015
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© Macmillan Cancer Support 2013
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