What would happen if you could not make decisions for yourself? Most of us would rather not think about it, but planning ahead can make a real difference. That is where Lasting Powers of Attorney (LPAs) come in. This guide explains what Lasting Powers of Attorney are, what they can do, what happens without one, and how to set them up in England and Wales.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document. It lets you (the “donor”) appoint one or more people you trust (your “attorneys”) to make decisions for you. You can also name replacement attorneys in case an original attorney can no longer act. Because you choose them in advance, decisions are made by people you picked rather than by a court.
Why Lasting Powers of Attorney matter
Imagine you have an accident or develop an illness that affects your ability to make decisions. Without an LPA, your family might struggle to manage your finances or be involved in decisions about your care.
Many people assume a spouse or next of kin can step in automatically. However, this is not the case. Even your husband, wife or civil partner has no automatic right to run accounts in your sole name or make decisions for you. An LPA gives the people you choose the legal authority to help.
Another common belief is that LPAs are only for older or wealthy people. In fact, loss of capacity can happen at any age, after an accident or a sudden illness. So whether you are 25 or 75, an LPA is worth considering.
Who can make an LPA?
You must be 18 or over and have mental capacity when you make an LPA. Once you have lost capacity, it is too late. You do not need to be a British citizen, and you can make an LPA if you live abroad. However, it is designed for use in England and Wales and may not be recognised in other countries.
The two types of LPA
There are two types, and many people make both.
Property and Financial Affairs LPA
This LPA lets your attorneys deal with your money and property. For example, they can pay bills, manage bank accounts, collect benefits or pensions, and buy or sell property. When you make the LPA, you can choose whether, once registered, it can be used while you still have capacity, with your permission, or only if you lose capacity. So it can help with practical tasks even before it is strictly needed.
Health and Welfare LPA
This LPA can only be used once registered, and only if you lack capacity to make the decision in question. It covers decisions about where you live, your medical care, your daily routine and who you have contact with. You can also choose whether your attorneys can make decisions about life-sustaining treatment.
An illustrative example
For example, imagine a married couple in their sixties without LPAs. One of them has a serious stroke and loses capacity. The other finds the bank will not let them manage accounts in their partner’s sole name. They may also have difficulty selling a jointly owned home. In the end, they have to apply to the Court of Protection to become a deputy, which takes time and costs money.
Now imagine the same couple had made registered LPAs years earlier. The healthy partner could use the financial LPA straight away to pay bills and manage the property. They could also use the Health and Welfare LPA for decisions their partner could no longer make. This is a fictional example, but it shows why LPAs are worth making before they are needed.
What happens without an LPA?
If you lose capacity without an LPA, nobody automatically has the power to manage your affairs. Instead, someone may need to apply to the Court of Protection to be appointed as your deputy. This can mean:
- the court, rather than you, decides who is appointed
- delays in accessing money to pay bills or care costs
- court fees and ongoing supervision by the Office of the Public Guardian (OPG)
- added stress for your family at an already difficult time
How to make Lasting Powers of Attorney
Making an LPA involves several steps:
- Choose your attorneys and any replacement attorneys. Think about their skills, trustworthiness and willingness to act.
- Decide how they should act. If you appoint more than one, decide whether they must act together or can act separately. Also consider any instructions or preferences.
- Complete the forms. Each type of LPA needs its own form.
- Involve a certificate provider. This is a person who confirms that you understand the LPA and are not under pressure to make it.
- Sign in the right order. You sign first in front of a witness, then the certificate provider signs, then your attorneys sign, also in front of a witness.
- Register the LPA with the OPG.
An LPA can only be used once it has been registered. You can read the GOV.UK guide to making and registering an LPA.
Registration and the OPG fee
OPG registration currently takes around 8 to 10 weeks, so it is best to start early rather than wait for a crisis. The OPG charges £92 to register each LPA, so £184 for both types. Some people qualify for a reduction or exemption based on their income or because they receive certain benefits.
Changes to the LPA process
The Powers of Attorney Act 2023 allows the OPG to move more of the LPA process online and introduce new identity checks. These changes are being introduced in stages, so check GOV.UK for the current position before you start.
Safeguards in your LPA
LPAs give your attorneys real power, so it is sensible to think about safeguards. For example, you could:
- choose attorneys you trust completely
- appoint more than one attorney
- name replacement attorneys
- require attorneys to act jointly on certain decisions, such as selling your home
- add instructions, such as asking for accounts to be shared with someone you trust
These measures can reduce the risk of problems later.
Reviewing, changing or cancelling an LPA
Once registered, an LPA stays valid unless you cancel it or something ends an attorney’s appointment. For instance, divorce or dissolution usually ends a former spouse’s appointment as attorney. So review your LPAs after major life events.
As long as you have capacity, you can cancel your LPA. To end a registered LPA, you make a deed of revocation and send it to the OPG. You should also tell your attorneys. For small changes, such as an attorney’s new address, you can simply tell the OPG. However, you cannot add a new attorney to an existing LPA. Instead, you would need to make a new one.
How A.D.E. Wills can help
We prepare both types of Lasting Powers of Attorney. With our Full Service LPA, we prepare the documents, attend the signing as witness and certificate provider, and register the LPA for you. Alternatively, our Self-Sign LPA covers preparation, certificate provider and registration, and you sign at home. Our fees are fixed and shown on the LPAs Pricing page. The OPG fee of £92 per LPA is payable on top.
If you have questions, Edward is happy to help, from choosing attorneys to registering the documents. Your initial chat is free and can be online or over the phone. Call 01865 507174, email info@adewills.co.uk, or read more about our Lasting Powers of Attorney service.
