24.11.25

Making a Power of Attorney is one of the most important steps you can take to protect yourself, your finances, and your loved ones – yet it is often misunderstood. In this piece, we dispel some common myths and answer frequently asked questions about Powers of Attorney.

We’ll explain the key types of Powers of Attorney available in England and Wales, why putting one in place is so important, and what can happen if you don’t have one.

What is a Power of Attorney?

A Power of Attorney is a legal document which gives people legal authority to make decisions, and take actions on your behalf, as if they were you.

There are three main types of Power of Attorney:          

1. Lasting Powers of Attorney (LPA)
   • There are two LPAs – Property & Financial Affairs and Health & Welfare.
   • These remain in place until:
     • You die;
     • You revoke (cancel) it;
     • All of your chosen Attorneys can no longer do the role.

2. Enduring Power of Attorney (EPA)
   • These apply to property and finances only.
   • Since LPAs were introduced in October 2007, new EPAs can no longer be created.
   • EPAs already in place remain legally valid.

3. ‘Ordinary’ or ‘General’ Power of Attorney (OPA / GPOA)

• These are generally used for temporary and short-term arrangements.
• These are limited to when you have mental capacity, so are unsuitable for long-term decisions.

Why is it best to use a lawyer to make a Power of Attorney? Why not do it myself?

Because, with great power, comes great responsibility.

There are a number of options and decisions to make when creating a Power of Attorney to protect you, your finances, and the Attorneys you are appointing. A lawyer has the technical knowledge and expertise to optimise the document to suit your circumstances.

There is a common misconception that a Power of Attorney is ‘filling in a form’. In reality, a poorly drafted Power of Attorney can cause serious financial, legal, and practical problems at an already stressful time.

Rather like maintaining your car, or going for a haircut – although you could do it yourself, it is best to use a professional.

I don’t want to make a Power of Attorney because I can manage my own affairs. Why can’t I wait to make one until I need it?

You can only make a Power of Attorney if you have mental capacity to do so. If you are in a serious accident, have a medical issue (e.g. recovering from an illness or stroke) or otherwise lose mental capacity, you will not be able to make a Power of Attorney.

Attorneys do not take over from you as soon as you make a Power of Attorney. You can specify the circumstances that your Attorneys begin to help you, and what they can and cannot do. It is vital that the document states these wishes correctly, for them to be valid.

Your Attorneys must consult with you as far as possible when they are looking after your affairs. They must also only make decisions that are in your best interests.

What happens if I don’t have a Power of Attorney in place, and I lose the ability to manage my affairs?

Your loved ones would have no legal authority to make decisions on your behalf. Your finances would be ‘frozen’ and they may have difficulty liaising with medical and social care professionals.

It is very likely that a Deputyship application would have to be made to the Court of Protection. A Deputy has a very similar role to an Attorney, although the role is more closely supervised, and therefore can be more onerous.

The application process itself is time-consuming and expensive. The Court’s application fee is £421, compared to £92 for an LPA. At present, the Court typically takes 8 months to process a non-urgent application. If your circumstances are complex, it can take even longer.

As specialists in this area, we are highly experienced in making applications to the Court of Protection. We can also assist with the Deputy’s Annual Report, and advising Attorneys and Deputies on their authority and their duties. There is more information about our Court of Protection services here.

Can an Attorney change my Will? Do they deal with my estate after I have died?

An Attorney cannot make a Will for you, or change an existing one.

An Attorney can only act during your lifetime; they have no authority to deal with your affairs once you have died. If you have a Will, it will name Executors. They are the people that you legally authorise to deal with your estate.

If your Attorney(s) are also Executors of your Will, their authority to deal with your estate comes from your Will, not from the Power of Attorney.

If you have not made a Will, the law states who can deal with your estate when you die. Again, the Power of Attorney does not apply.

What if my Will needs to be made/changed and I have lost mental capacity?

An application can be made to the Court of Protection for a Statutory Will to be made. This takes effect the same way as a Will you have made yourself. It must be sealed by the Court of Protection to be valid, because the Court is effectively endorsing the Will on your behalf.

A Statutory Will cannot be made if a person has capacity to make a Will for themselves.

Who should I choose as my Attorney? Should I have more than one?

Choose someone (or people) that you completely trust to follow your wishes, and to always act in your best interests.

Each Attorney needs to be willing to take on the role, and be available long-term. They should also be capable of managing finances, paperwork, and decision-making.

It is a good idea to appoint more than one Attorney, to future-proof the document as much as possible for you. You can choose Attorneys and Replacement Attorneys, and you can state when you would like them to take up the appointment.

If you have more than one Attorney acting at the same time, you will decide how they should work together. Some key considerations are:

• Do your chosen Attorneys get on well?
• Will your Attorneys be able to resolve disagreements effectively?
• Do any of your Attorneys have a conflict of interest, for example, as a beneficiary of your Will?
• Would appointing a professional Attorney, as well or instead, be a good idea?

What happens if my Attorney dies before me?

That depends on whether you have appointed more than one Attorney or a Replacement Attorney.  If you have, other Attorney might be able to continue acting for you or the Replacement Attorney might step in to act.

If you do not have another Attorney to act for you, a Deputyship application will need to be made to the Court of Protection.

Can my Power of Attorney be used abroad? Can a Power of Attorney made abroad be used in the UK?

This depends on the country, what the Power of Attorney document says, and the circumstances at the time.

You should seek legal advice on this point, and ensure that you have more than one Power of Attorney in place if you need to.

Can I change or cancel a Power of Attorney once I have made it?

You can cancel a Power of Attorney and/or make a new one, as long as you have mental capacity to do so – and as long as you are not being pressured or coerced into changing it.

How do I get started?

Whether you’re planning ahead, supporting a family member, or looking to understand your options, getting professional legal advice when setting up a Power of Attorney is important. Our specialist team can guide you through every step, ensuring your Power of Attorney is tailored to your circumstances and offers the best possible protection for you and your loved ones. To discuss your options or get started, contact us for a discussion with our friendly team.