A Lasting Power of Attorney (LPA) lets you choose who makes decisions for you if you cannot make them yourself. Many people put it off, assuming it can wait or that their family can step in automatically. Under the law of England and Wales, that is not the case. This guide explains what a lasting power of attorney is, when to make an LPA, why waiting can cause problems and how to set one up, for yourself or for an elderly relative.
What is a lasting power of attorney?
An LPA is a legal document that lets you appoint one or more people you trust, called attorneys, to make decisions on your behalf. You are known as the donor. There are two types:
- Property and financial affairs, covering things like your bank accounts, bills, pensions, benefits and property. Once it is registered, your attorneys can use this type while you still have capacity if you allow it, for example if you are in hospital. Alternatively, you can say it should only be used if you lose capacity.
- Health and welfare, covering decisions about your care, medical treatment, daily routine and where you live. This type can only be used once registered and only when you cannot make the decision in question yourself. You can also choose whether to give your attorneys authority over life-sustaining treatment.
You can make one type or both, and you can choose different attorneys for each. Many people make both, because they cover different decisions.
When must an LPA be made?
You must make (sign) your LPA while you still have mental capacity to understand what it means. Once capacity is lost, it is too late to make one.
After signing, the LPA must be registered with the Office of the Public Guardian (OPG) before anyone can use it. Registration can be completed after you lose capacity, provided you signed while you still had it. However, OPG registration currently takes around 8 to 10 weeks. So the safest approach is to make and register your LPAs well before they might be needed. The OPG charges £92 to register each LPA, although reductions and exemptions may apply.
Why people delay making an LPA
Many people feel an LPA only matters later in life. Others believe their spouse or children will automatically have authority if something happens.
In fact, nobody has an automatic right to manage your affairs or make decisions for you. That includes your husband, wife or civil partner. A joint account holder can usually still use a joint account, but that rarely covers everything. For example, a spouse may be unable to deal with a pension, a sole-name savings account or a house sale.
Why waiting can create problems for elderly relatives
For older people, a sudden change in health can come at any time of year. However, winter often brings extra pressure:
- Illness: flu, chest infections and other winter illnesses can lead to hospital stays, sometimes with periods of confusion.
- Falls and accidents: icy pavements raise the risk of falls, which can lead to a long recovery and decisions about care.
- Bills and household costs: heating and other essential bills still need paying if someone cannot manage their own finances.
Because registration takes around 8 to 10 weeks, an LPA started after a health scare may not be ready when the family needs it. So it is far easier to act while your relative is well.
What happens without a lasting power of attorney?
If you lose capacity without an LPA, your family may need to apply to the Court of Protection to be appointed as your deputy. This process usually takes longer and costs more than making an LPA. Deputies must also report to the OPG each year.
Above all, the court decides who acts for you, so you lose the chance to choose. GOV.UK explains how Lasting Powers of Attorney work and what happens without one.
How an LPA is made
- Choose your attorneys. Pick people you trust who are willing to take on the role. You can also choose replacement attorneys.
- Decide which LPA, or both. You also decide how attorneys should act together, and any preferences or instructions you want to include.
- Complete the forms. You can currently fill them in online or on paper.
- Sign in the right order. The donor signs first, in front of a witness. A certificate provider then confirms the donor understands the LPA and that nobody is pressuring them. After that, the attorneys sign, each in front of a witness. An attorney cannot witness the donor’s signature.
- Register with the OPG. Nobody can use the LPA until registration is complete.
Changes under the Powers of Attorney Act 2023
The Powers of Attorney Act 2023 is modernising how LPAs are made and registered. The changes include a digital service and identity checks, and they are being introduced in stages. Paper LPAs remain valid, and existing registered LPAs are not affected. Because the process is changing, check the latest position on GOV.UK, or ask us when you get in touch.
Why LPAs matter at any age
An LPA is not only for older people. Illness or an accident can affect anyone, at any age. A stroke, a serious head injury or a sudden illness can leave someone unable to make decisions, sometimes for a short time and sometimes for good.
A lasting power of attorney means the people you have chosen can act for you if you cannot. It also lets you set out preferences and instructions for how they should act. In turn, attorneys must act in your best interests and follow the Mental Capacity Act 2005, and the OPG can investigate concerns about how an attorney is acting.
How LPAs fit into your estate planning
An LPA does a different job from a Will. A Will takes effect after death. By contrast, an LPA works during your lifetime, which is when your family may need authority to help you. Most people benefit from having both.
At A.D.E. Wills, we help clients understand how these documents work together. We are not solicitors and we do not give financial or tax advice. Where specialist advice is needed, we can refer you to an appropriate professional.
How A.D.E. Wills can help
A.D.E. Wills is a professional Will writing practice, and Edward Richings is a Full Member of the Society of Will Writers. Edward will talk you through the two types of LPA, who might suit the role of attorney and how you want them to act.
With our Full Service LPA, Edward prepares the documents and attends the signing as witness and certificate provider. He then registers the LPA for you. With our Self-Sign LPA, we prepare the documents, act as certificate provider and register it, and you sign at home. We can visit at home or work online. Our LPAs are charged at a fixed fee, shown on our LPAs Pricing page. The OPG fee of £92 per LPA is separate.
To talk about an LPA for yourself or a relative, call 01865 507174 or email info@adewills.co.uk. You can also read more about our Lasting Power of Attorney service.
