Lasting powers of attorney, explained

A lasting power of attorney, usually shortened to LPA, is a legal document in which you appoint one or more people to make decisions on your behalf. You are the donor. The people you appoint are your attorneys. They do not have to be lawyers. Most attorneys are a husband, wife, partner, adult child or close friend.

It exists for one situation. You are still alive, but you cannot make a decision for yourself. A stroke, a serious accident, dementia, a spell of severe mental illness, or a stay in intensive care. In that moment your family has no automatic right to deal with your bank, your mortgage lender, your landlord or your employer, and no automatic right to be consulted about your treatment. Being married makes no difference. A joint account gives access to that account only.

The LPA is what closes that gap. Without it, the only route is an application to the Court of Protection, which takes months and costs a great deal more.

It is worth being clear about what it is not. It is not a will. A will deals with what happens after you die, and an LPA stops at the moment of death. They are two separate documents and most people should have both.

There are two lasting powers of attorney and they are entirely separate documents. You can make one, or the other, or both. Most people who make one end up making both, because the situations that trigger them are the same situations.

Property and financial affairs

This covers money and property. Running your bank accounts, paying your bills, collecting your pension and benefits, dealing with your investments, and selling your house if that becomes necessary to pay for your care. It is the one that gets used most.

It can be used as soon as it is registered, with your permission, while you still have full capacity. That is genuinely useful if you are abroad for long periods, in hospital, or simply finding admin hard. If you would rather it only came into effect if you lost capacity, you can say so in the document.

Health and welfare

This covers where you live, your day to day care, the medical treatment you are given, and who you see. It can only ever be used once you are unable to make the decision yourself. Until that point, your attorneys have no say at all.

Inside it there is one choice that matters more than any other. You decide whether your attorneys can give or refuse consent to life sustaining treatment on your behalf, or whether that decision stays with your doctors. There is no right answer. There is only your answer, and this is the only place you get to give it.

An LPA is different from a living will, properly called an advance decision to refuse treatment. An advance decision refuses specific treatment in specific circumstances. A health and welfare LPA hands the judgement to a person. You can have both, and the order they were made in decides which one wins, so it is worth taking advice before you have both in play.

Because by then it is too late. This is the single most important paragraph on this page.

You can only make an LPA while you have the mental capacity to understand what you are signing and what it lets your attorneys do. The moment you lose that, the door closes. Nobody can make one for you, not your husband or wife, not your children, not your solicitor.

Capacity does not usually disappear overnight, and that is what makes people wait. There is a period where a person is muddled some days and fine on others, and the family assumes there is time. Then there is an admission to hospital, or a diagnosis, and the assessment comes back saying no. Everything after that is the Court of Protection.

The other reason not to wait is registration. An LPA cannot be used until the Office of the Public Guardian has registered it, and registration takes weeks. If you make it during a crisis, you will still be waiting when you need it.

Treat it as something you do at the same time as your will, in your thirties or forties, and put it in a drawer. It costs nothing to hold. The people who are glad they made one are almost never the people who thought they would need it.

Anybody aged 18 or over who has mental capacity can be an attorney. For a property and financial affairs LPA they must not be bankrupt or subject to a debt relief order. Beyond that the law leaves it to you, which is both the freedom and the risk.

Choose somebody who is honest, who is good with paperwork, and who lives close enough to the situation to act. Choose somebody who will still be around in thirty years, which usually argues for at least one person younger than you. And choose somebody who will stand their ground with the rest of the family, because that is often what the job turns out to require.

You can appoint more than one, and how they act together matters. If they act jointly, every decision needs all of them to agree and all of them to sign, and if one of them dies or drops out the whole appointment fails unless you have said otherwise. If they act jointly and severally, any one of them can act alone, which is far more practical and is what most people choose. You can also mix the two, requiring agreement on the big decisions such as selling a house and letting any one of them handle the day to day.

Name replacement attorneys. They step in if your first choice dies, loses capacity, becomes bankrupt, or simply decides they cannot do it. An LPA with no replacements is one bereavement away from being worthless.

You can also name people who must be told when the LPA is sent for registration. It is optional, and it is a sensible safeguard where the family is complicated, because it gives anyone worried about pressure being applied a formal chance to object.

Attorneys are not free agents. The Mental Capacity Act 2005 sets out what they must do, and the Office of the Public Guardian can investigate them if they do not.

They must start by assuming you can make the decision yourself, and help you to make it before they make it for you. They must not treat a decision as evidence of incapacity just because they think it is unwise. Where you genuinely cannot decide, they must act in your best interests, taking account of your past and present wishes, your beliefs and your values, and they must choose the option that restricts your freedom least.

They must keep your money separate from their own. They must keep records of what they have spent and why. They cannot pay themselves for acting unless the document says they can, although they can claim reasonable out of pocket expenses. They cannot hand the job on to somebody else.

Gifts are the area where well meaning attorneys most often go wrong. An attorney can make gifts only on customary occasions such as birthdays and weddings, only to people connected to you or to charities you already supported, and only in amounts that are reasonable given the size of your estate. Giving away the house to reduce a future care bill is not within an attorney's power. It needs an order from the Court of Protection, and doing it without one can lead to the attorney being removed and required to repay it.

You can also write your own instructions and preferences into the document. Instructions bind your attorneys. Preferences guide them. Both need careful wording, because an instruction the Office of the Public Guardian considers unworkable can have the LPA rejected at registration.

An LPA is not usable the day you sign it. It has to be registered with the Office of the Public Guardian first, and the order the signatures go in matters.

You sign first. Then a certificate provider signs, confirming that you understand what you are doing and that nobody has pressured you into it. A certificate provider is either somebody who has known you personally for at least two years, or a professional with the skills to judge capacity, such as a solicitor or a doctor. They cannot be one of your attorneys or a member of their family. Then your attorneys sign. Everyone's signature has to be witnessed.

Sign anything out of order and the whole document is invalid. It is the most common reason an LPA comes back rejected, and it is one of the things you are paying a solicitor to get right.

Once it is sent in, the Office of the Public Guardian checks it and waits out a statutory period during which anyone notified can object. Registration currently takes a number of weeks, and the document that comes back carries a stamp on every page. That stamped original is what a bank will want to see.

Register it as soon as it is made. There is nothing to be gained by holding a signed but unregistered LPA in a drawer, and quite a lot to lose.

There are two costs and they are paid to two different places.

The Office of the Public Guardian charges a registration fee of £92 for each lasting power of attorney it registers. That is a government fee, not ours. Because there are two types of LPA, a couple making both types each will be registering four documents.

If your gross annual income is below a set threshold you can apply for a remission of half that fee, and if you receive certain means tested benefits you can apply for exemption from it altogether. You have to claim it and provide evidence. Ask us on the call and we will tell you whether you are likely to qualify.

Our own fee for a lasting power of attorney is a fixed fee, whether it is the property and financial affairs one or the health and welfare one. It is confirmed on your consultation call, and set out for you in writing, before any work starts.

Compare that with the alternative. If you lose capacity without an LPA, somebody has to apply to the Court of Protection to be appointed as your deputy. That involves a court application fee, a medical assessment, a security bond, an annual supervision fee for as long as the deputyship lasts, and an annual report. It runs into many hundreds of pounds a year, every year, and it takes months to put in place.

If capacity is already gone, the LPA route is closed. What is left is deputyship.

Somebody, usually a family member, applies to the Court of Protection to be appointed as your deputy. They have to file evidence, including a formal assessment of your capacity, and serve notice on everybody with an interest. The court decides who is appointed and exactly what they are allowed to do.

The differences from an LPA are not small. It takes months rather than weeks, so the bills go unpaid in the meantime. It costs substantially more, and it keeps costing, because a deputy is supervised by the Office of the Public Guardian and pays a supervision fee and files an annual account for as long as the order lasts. The court chooses the deputy, not you, and it may not choose the person you would have chosen. And a deputy's powers are narrower than an attorney's, so returning to court for permission is a regular part of the job.

Deputyship for health and welfare decisions is rarer still. Courts are reluctant to make those orders at all, which means the decisions about your care are made by professionals applying a best interests test, with your family consulted rather than in charge.

None of that is a criticism of the system. It is simply what happens when there is no document. It is also, in almost every case, entirely avoidable with an hour of your time.

Yes, as long as you still have capacity. You can revoke a lasting power of attorney at any time by signing a formal deed of revocation and telling the Office of the Public Guardian and your attorneys. People do this after a divorce, after falling out with an attorney, or simply because the person they chose has moved abroad.

You cannot amend a registered LPA. There is no mechanism for crossing out one attorney and writing in another. If the people or the arrangements need to change, you revoke the old document and make a new one, which means a fresh registration fee.

Some things end an appointment automatically. An attorney who dies, loses capacity, or gives notice that they will not act drops out. For a property and financial affairs LPA, an attorney who becomes bankrupt drops out. If your husband, wife or civil partner is your attorney and you divorce, their appointment ends unless the document says otherwise. If your attorneys were appointed jointly and one of them drops out, the whole LPA can fail, which is exactly why replacement attorneys matter.

The LPA itself ends when you die. From that point your executors take over under your will, and your attorneys have no further authority. It is worth telling your attorneys that, because acting on after a death is a genuine mistake people make in good faith.

If you already hold an enduring power of attorney signed before 1 October 2007, it is still valid. It covers property and finances only, not health and welfare, and it has to be registered at the point you start to lose capacity rather than straight away. Many people with an old enduring power make a health and welfare LPA alongside it.