What You Need to Know About Lasting Power of Attorney
Introduction to Lasting Power of Attorney (LPA)
Making decisions about your future care and finances isn’t the most comfortable of conversations, but it’s one of the most important you’ll ever have. A Lasting Power of Attorney (LPA) ensures that someone you trust can make decisions on your behalf if you’re unable to do so yourself.
Whether through illness, accident, or the natural progression of age, there may come a time when you need someone to step in, and having an LPA in place provides invaluable peace of mind for you and your loved ones.
Types of Lasting Power of Attorney
In England and Wales, there are two distinct types of Lasting Power of Attorney, each with a different purpose.
- A Health and Welfare LPA allows your chosen attorney to make decisions about your daily routine, medical care, and whether you should move into residential care. Crucially, this type only comes into effect when you lack the mental capacity to make these decisions yourself.
- A Property and Financial Affairs LPA can be used as soon as it’s registered, even whilst you still have capacity. This enables your attorney to manage your bank accounts, pay bills, sell property, and handle investments. Many people find this particularly useful if they’re physically unable to manage their affairs, even when mentally capable.
The key distinction is timing and scope: one protects your personal welfare during incapacity, whilst the other can assist with financial matters whenever needed.
Why is a Lasting Power of Attorney Necessary?
Probate is the legal process through which a deceased person’s will is validated, and their estate is administered. Without an LPA, your family faces a considerably more complex situation if you lose capacity. They would need to apply to the Court of Protection for a deputyship order, a lengthy, expensive, and stressful process that can take many months. During this time, your assets may be frozen, bills could go unpaid, and crucial decisions about your care might be delayed.
Consider a scenario where someone suffers a sudden stroke. With an LPA in place, their attorney can immediately access funds to pay for care, communicate with medical professionals, and ensure the home is maintained.
Without one, loved ones are left navigating bureaucratic obstacles during an already distressing time. Ultimately, an LPA is a practical tool that protects both you and those who care about you.
Tips to Set Up a Lasting Power of Attorney
Creating an LPA involves completing specific forms available from the Office of the Public Guardian or through a solicitor. Keep in mind that:
- You’ll need to be over 18 and have mental capacity when making the LPA.
- The document must be signed by you, your attorney, a certificate provider (who confirms you understand what you’re doing), and then registered with the Office of the Public Guardian before it can be used.
- Common mistakes include choosing attorneys who don’t get along if you appoint multiple people, failing to discuss your wishes clearly, and delaying registration.
It’s important to be aware that an unregistered LPA is worthless in an emergency. The registration process typically takes 8-10 weeks, so don’t leave it until you think you might need it. By then, it may be too late.
Choosing the Right Attorney
Selecting an attorney could be the most crucial decision in the entire process. This person will have significant control over your life, so choose someone trustworthy, organised, and capable of making difficult decisions.
Many people choose their spouse, adult children, or close friends, and you’ll want to consider whether they live nearby, understand your values, and have the time to fulfil the role properly.You can appoint multiple attorneys to act jointly (all must agree on decisions), jointly and severally (they can act independently), or a combination of both for different decisions. Your attorney must always act in your best interests, follow the Mental Capacity Act principles, and keep accurate records of decisions made on your behalf.
Legal and Financial Implications of an LPA
Registering an LPA has recently risen to a cost of £92 per application, though exemptions and reductions are available for those on low incomes. Solicitors’ fees vary if you choose professional assistance. Once registered, there are no ongoing costs unless you appoint a professional attorney who charges for their services.The Office of the Public Guardian has a register of all LPAs and investigates concerns about attorneys who may not be acting appropriately. Your LPA works alongside your will as part of comprehensive estate planning, ensuring your wishes are respected both during your lifetime and after.
Common Questions About Lasting Power of Attorney
Can I change or cancel my LPA once it’s registered?
Yes, absolutely. As long as you still have mental capacity, you can revoke your LPA at any time. You’ll need to complete a formal deed of revocation and notify the Office of the Public Guardian, your attorneys, and anyone else who was informed about the original LPA. You can then create a new one if circumstances have changed.
What happens if my attorney can no longer act?
If you’ve appointed multiple attorneys, the remaining ones can continue (if appointed jointly and severally). If you’ve only appointed one, or all become unable to act, you’ll need to make a new LPA if you still have capacity. This is why many people appoint replacement attorneys in their original document; backup choices who can step in if needed.
Can my attorney do whatever they want with my money?
No. Attorneys must follow strict legal principles, always acting in your best interests and in accordance with the Mental Capacity Act 2005. They must keep your money separate from their own, maintain accurate records, and avoid conflicts of interest. The Office of the Public Guardian can investigate if someone suspects misuse, and attorneys can face criminal prosecution for abuse.
Do I need a solicitor to create an LPA?
It’s not legally required, and you can complete the forms yourself. However, many people find the process complex and choose professional help to ensure everything is correct. A solicitor can also provide valuable advice about choosing attorneys and structuring your LPA to suit your specific circumstances. The modest cost often proves worthwhile for the peace of mind it brings.
What’s the difference between an LPA and an ordinary Power of Attorney?
An ordinary Power of Attorney becomes invalid if you lose mental capacity—precisely when you’d need it most. An LPA is specifically designed to continue (or, in the case of Health and Welfare, to begin) when you lack capacity. Ordinary Powers of Attorney are useful for temporary situations, such as being abroad, but they don’t provide long-term protection.
Will having an LPA affect my independence?
Not at all. A Property and Financial Affairs LPA can be used whilst you have capacity, but only with your permission. You remain in complete control and can make all your own decisions. It simply provides a safety net. The Health and Welfare LPA only activates when you lack the capacity to make specific decisions yourself.
Can I appoint different attorneys for different types of LPA?
Yes, and many people do. You might choose your spouse for financial matters but your adult child for health decisions, or vice versa. Consider who is best suited to each role; financial acumen matters for one, whilst understanding your care preferences is crucial for the other.
What if my family disagrees with my choice of attorney?
You’re free to choose whoever you wish, and family members cannot veto your decision. However, when you register the LPA, certain people must be notified (if you choose to name them), and they can raise objections to the Office of the Public Guardian if they have valid concerns about factual inaccuracies or fraud. Nevertheless, disagreement with your choice alone isn’t sufficient grounds for objection.
Take Control of Your Future
A Lasting Power of Attorney lets you take control of your future. The process might seem daunting, but the protection it provides far outweighs the modest time and expense involved.
Don’t wait for a crisis to prompt action. Have the conversation with your loved ones today, choose your attorneys carefully, and register your LPA whilst you’re still able to do so. Your family will thank you for your foresight.
