A Lasting Power of Attorney (LPA) is a legal document that lets you (the “donor”) appoint one or more people (your “attorneys”) to make decisions on your behalf if you become unable to make them yourself. This guide explains the role of attorneys in a Lasting Power of Attorney, who you can choose, what they can do, and how to register an LPA.
Choosing LPA attorneys is one of the most important decisions in the process, so this guide explains what to consider.
What Is a Lasting Power of Attorney?
There are two types of LPA:
- Property and Financial Affairs LPA: covers decisions about your money and property.
- Health and Welfare LPA: covers decisions about your health, care and personal welfare.
You can make one or both, depending on your needs. However, an LPA must be made while you still have mental capacity. If you wait until capacity is lost, it is too late, and your family may need to apply to the Court of Protection instead.
What Is an Attorney?
An attorney is someone you trust to make decisions for you when you cannot make them yourself. This might be because of illness, injury or a decline in mental capacity. Attorneys take on real responsibility, so it is important to choose them carefully.
Who Can Be an Attorney?
An attorney must be 18 or over and have mental capacity to make the decisions. Usually, people choose:
- a spouse, partner or other family member;
- a close friend;
- a professional, such as a solicitor.
Above all, choose someone you trust to respect your wishes and act in your best interests.
Who Cannot Be an Attorney?
- Anyone under 18.
- Anyone who lacks the mental capacity to make the decisions.
- For a Property and Financial Affairs LPA, anyone who is bankrupt or subject to a debt relief order.
Also, paid care workers are generally not suitable attorneys for someone they care for, because of the risk of a conflict of interest.
How Many Attorneys Can You Have?
You must appoint at least one attorney, and there is no maximum. However, having too many can make decisions slow and complicated. So, many people choose one or two attorneys and one or two replacement attorneys.
What Can Attorneys Do?
Your attorneys can only make the decisions your LPA allows. Their powers depend on the type of LPA:
- Property and Financial Affairs LPA: managing bank accounts, paying bills, collecting benefits or a pension, and selling property.
- Health and Welfare LPA: decisions about medical treatment, care, daily routine and where you live. If you choose, this can include life-sustaining treatment.
When Can Attorneys Act?
Both types of LPA can only be used once registered. After that:
- Health and Welfare LPA: your attorneys can only act when you lack capacity to make the decision yourself.
- Property and Financial Affairs LPA: you can choose whether your attorneys can act:
- as soon as the LPA is registered, with your permission, even while you still have capacity; or
- only when you lack mental capacity.
If you choose the second option, banks and other organisations may ask for evidence of your lack of capacity. This can cause delays, which is why many people choose the first option.
Attorney Responsibilities
Attorneys must follow the principles in section 1 of the Mental Capacity Act 2005, and have regard to its Code of Practice. In summary, they must:
- assume you can make a decision unless it is shown that you cannot;
- help you make your own decisions as far as possible;
- not treat you as unable to decide just because they think your decision is unwise;
- act in your best interests;
- choose the option that is least restrictive of your rights and freedom.
Appointing More Than One Attorney
If you appoint more than one attorney, you must decide how they will work together:
- Jointly: they must all agree on every decision.
- Jointly and severally: they can make decisions together or on their own.
- Jointly for some decisions, and jointly and severally for others: for example, they might need to agree on selling your home, but act alone on day-to-day bills.
Replacement Attorneys
It is wise to consider replacement attorneys, who can step in if an original attorney can no longer act. This reduces the risk of your LPA stopping working, particularly if you have a sole attorney or attorneys appointed jointly. You can read more in our guide to LPA replacement attorneys.
Professional Attorneys
Most people choose family or friends. However, you can appoint a professional, such as a solicitor. This might suit you if:
- you do not have close family or friends who can act;
- your affairs are complex;
- you want to reduce the risk of family disagreements.
Remember that professional attorneys charge for their time.
Registering Your Lasting Power of Attorney
An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. The OPG fee is £92 per LPA, and reductions or exemptions may apply for people on lower incomes or certain benefits. Registration currently takes around 8 to 10 weeks, so it is worth making your LPA well before it might be needed.
The Powers of Attorney Act 2023 is also modernising the system, including a move towards making and registering LPAs online. The GOV.UK Lasting Power of Attorney guide has the latest details.
Reviewing Your LPA
Review your LPA from time to time, especially if your circumstances change. Once it is registered, you cannot simply add new attorneys. Instead, you would usually need to make and register a new LPA, which you can do while you still have capacity.
When Attorneys Can No Longer Act
An attorney’s appointment ends if they:
- die;
- lose mental capacity;
- decide they no longer want to act;
- become bankrupt or subject to a debt relief order (Property and Financial Affairs LPA only);
- were your spouse or civil partner and the marriage or civil partnership legally ends, unless your LPA says otherwise.
Making Your LPA with A.D.E. Wills
Setting up a Lasting Power of Attorney is an important step in planning for your future. We prepare LPAs and can also act as your certificate provider, for a fixed fee shown on our LPAs Pricing page. If you would like to talk through your choice of attorneys, call us on 01865 507174 or email info@adewills.co.uk. You can also read more about our Lasting Powers of Attorney.
