Who to choose?
Think about who you would like to be your continuing and/or your welfare attorney. It should be someone you trust for example:
- your partner
- a family member
- a close friend
- a firm of solicitors can act as your continuing attorney, but not your welfare attorney. Your welfare attorney has to be a named individual.
You can appoint one person with joint powers covering both your welfare and finances, or you can appoint a different person for each. It's a good idea to appoint joint or substitute attorneys, just in case one becomes unavailable for any reason.
The Act says your attorney must always take your wishes into account when making decisions on your behalf, so it is important to make sure he or she knows as much as possible about you and your preferences. However, your attorney doesn't necessarily have to follow your wishes, for example if circumstances change.
A couple will need to each grant separate powers of attorney, although they can choose the same attorney(s). Spouses or partners may wish to appoint each other, perhaps with another family member (or a solicitor jointly or as a substitute for continuing power of attorney).
Setting up a power of attorney:
- Discuss your plans with your friends and relatives and any professionals you are involved with.
- Talk to the person or people you want to appoint as your attorney and make sure they are willing.Discuss what powers you want to include so they know what will be involved. Make a list of your wishes and preferences and give them a copy.
- See DIY power of attorney information and seek advice form appropriate voluntary organisation or advice agency, or solicitor. If you go to a solicitor, ask how much it will cost before you start. All solicitors must provide this information if they are asked.
- If you are naming the same person as your continuing and welfare attorney, the cheapest way is to do both at once in the same document. Or you could name different continuing and welfare attorneys in separate documents but at the same time.
- The power of attorney document must be signed by you. As a safeguard, it has to include a certificate from a practising solicitor, advocate or doctor. This is to certify that he or she spoke to you just before you signed and that you understood what you were doing and were not under anyone else's influence. This person can't be who you appoint as attorney. This is to help prevent anyone taking advantage of someone who is confused. If it is both a continuing and a welfare power of attorney, it must include two of these certificates, one for each part.
- All powers of attorney which will continue or start on incapacity must contain a statement that you (the granter) have considered how incapacity is to be determined in relation to decisions about the matters to which the power relates.
- A continuing power of attorney must say in the document that it is meant to be continuing - that is, that it will still work if you become unable to manage your own affairs.
- Your attorney will need to register the power with the Public Guardian. The registration form and guidance are available online or by post from the Public Guardian. This can be done right away unless the power states that it can only be registered at a certain time or after a certain event (for example, if doctors certify your mental incapacity). There is a form for registration, and the fee is currently £60. If both the welfare and financial powers are covered in one document there will be only one registration fee to pay.
- To use the power of attorney, your attorney will need to show a copy of the document provided by the Public Guardian together with a certificate of registration. If it isn't registered with the Public Guardian right away, you should make sure your attorney knows where the document is, so that he or she can find it when it is needed, and get it registered.
- It's a good idea to keep several copies of the original.
What will it cost?
A fairly standard power of attorney may cost £150 - £250, or sometimes more, depending on the time spent by the solicitor and the cost of any doctor's certificate, if the solicitor feels the need for further evidence of your mental capacity. Ask for an estimate of the cost before you start. People on Income Support or on a low income may be able to get help to cover the cost through the Legal Advice and Assistance scheme.
Solicitors fees for drawing up a power or attorney vary considerably and will depend on the complexity of the document. It is important to aks for estimates before making a choice.
A solicitor or doctor may also charge for signing the certificate/s which must accompany the power of attorney document.