Power of Attorney

If the person you care for currently has mental capacity, it may be helpful for them to give you (or another relative/carer) the authority to make decisions on their behalf.

This is called power of attorney and there are two types.

Ordinary power of attorney 

Ordinary power of attorney gives you permission to look after the person you care for's financial affairs including operating a bank account, making and changing investments or selling and buying a property. They may wish to give you ordinary power of attorney if:

  • they have a physical illness that makes practical things like getting out to a bank difficult
  • they have had an accident that lead to a physical injury
  • they have a sensory disability that makes it difficult to communicate.

You should not use ordinary power of attorney if they:

  • have been diagnosed with a mental health problem 
  • have been diagnosed with a disease which can lead to mental incapacity (such as dementia)
  • think they are likely to develop a mental health problem or disease which can lead to mental incapacity.

This is because once a person loses mental capacity you can no longer continue to use ordinary power of attorney. Instead a lasting power of attorney may be more appropriate.

How to grant ordinary power of attorney

If the person you care for wants to grant you Ordinary Power of Attorney there is a standard form of words to use. You should contact an experienced adviser, for example at your local Citizens Advice.

Lasting power of attorney

Lasting power of attorney gives you the authority to make decisions on the behalf of the person you care for when they lack mental capacity to make decisions for themselves.

It includes making decisions about:

  • financial affairs and property
  • health and welfare, such as consent to medical treatment or social care services. 

The person you care for can decide whether to give you power to make decisions about both aspects or just one depending on the circumstances.

You must make a lasting power of attorney while the person you care for still has capacity to appoint you. However it doesn't come into force until the person is judged to no longer have mental capacity.  

The person you care for may wish to give you lasting power of attorney if they have

  • been diagnosed with dementia
  • mental health problems
  • a brain injury
  • suffer the side-effects of medical treatment
  • any other illness or disability.

Making a power of attorney

You can get the guidance and forms you need to make a lasting power of attorney on the Gov.uk website.  There is a charge and it can take up to 10 weeks for your forms to be registered.

What happens if you don't have power of attorney?

Once the person you care for has lost capacity it is no longer possible to make a lasting power of attorney.

If the person you look after is assessed as lacking mental capacity, then any decision made on their behalf should be done in their ‘best interests’. There is a non-exhaustive checklist of factors that decision makers (usually the professionals involved with the person's care) must work through in deciding what is in a person's best interest. As a carer you have the right to be consulted concerning a person's best interests and can give your thoughts on the best course of action.

It is possible to apply to the Court of Protection to ask to be appointed as a deputy for the person you care for. You can ask for the court to make one-off decisions about a particular issue but if there are likely to be more decisions to make in the future then becoming a deputy is probably the best option.

Legal advice

Rothera Sharp Solicitors are working with Derbyshire Carers Association to provide free legal advice clinics to carers in Derbyshire. They may be able to advise you about Power of Attorney and other legal matters relevant to you as a carer. The clinics will be held on a monthly basis. More clinics / venues are planned around the county as the scheme progresses or you can request advice over the phone or by email. 

Other helpful websites

This information was last updated on 28/09/2018

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