An LPA drafted in good health is the only one that works when health fails

What a lasting power of attorney is

A lasting power of attorney (LPA) is a legal document that authorises one or more people (attorneys) to make decisions on your behalf. Unlike an ordinary power of attorney, an LPA continues to have effect even if you lose mental capacity -- which is precisely when it is most needed.

LPAs were introduced by the Mental Capacity Act 2005 and replaced the older enduring power of attorney (EPA). EPAs made before October 2007 are still valid if properly executed, but no new EPAs can be created. If you have an EPA, it covers property and financial affairs only -- you would need an LPA to cover health and welfare decisions.

There are two types of LPA: one covering property and financial affairs, and one covering health and welfare. They are separate documents that must each be registered with the Office of the Public Guardian before they can be used. Most people should have both.

The two types of LPA -- and why you need both

A property and financial affairs LPA authorises your attorneys to manage your bank accounts, collect income, pay bills, manage investments, and deal with property on your behalf. It can be used while you still have capacity, with your consent -- which is useful if you travel frequently or want to delegate financial management. When you lose capacity, it continues to operate without any additional steps.

A health and welfare LPA authorises your attorneys to make decisions about medical treatment, care arrangements, where you live, and day-to-day personal welfare. It can only be used when you lack capacity to make the decision yourself. Without a registered health and welfare LPA, doctors and care providers make decisions based on their clinical judgment and a "best interests" assessment -- your family has no legal authority to direct your care, even if they know exactly what you would want.

The two types of attorney do not need to be the same person. Many people appoint a financially experienced person (an accountant, a trusted friend) for financial affairs, and a family member who knows their personal wishes for health and welfare. The choice of attorney is the most important decision in the LPA.

Choosing your attorneys

An attorney must be over 18 and not bankrupt (for a property and financial affairs LPA). Beyond those requirements, the choice is yours. You can appoint up to four attorneys and can specify whether they must act jointly (all must agree on every decision) or jointly and severally (any attorney can act alone). Joint and several authority is more practical for day-to-day management; joint authority provides greater protection against a single attorney acting improperly.

You can also appoint replacement attorneys who step in if a primary attorney cannot act. This is recommended -- if your only attorney predeceases you, the LPA becomes inoperable unless there is a replacement.

Choose attorneys who you trust absolutely and who are capable of the administrative and decision-making burden. Being an attorney, especially for a person with significant assets or complex care needs, is a substantial responsibility. A certificate provider must confirm that you understand the LPA and are not being coerced -- this is a safeguard against exploitation.

Registering your LPA

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. Registration costs £82 per LPA (reduced to £41 or free if you receive means-tested benefits or have an income under £12,000). The application is submitted either online via the OPG's digital service or on paper using the prescribed forms.

Registration currently takes approximately 20 weeks from submission. This is the single most important timing consideration for LPAs -- you cannot use an unregistered LPA even in an emergency. Families who create an LPA only after a health event often find themselves waiting months for registration while decisions cannot be made.

During registration, the OPG notifies the people you have named as "persons to be notified" (if any) and your certificate provider. There is a 3-week waiting period during which anyone can raise an objection to the registration. If no objections are raised, the OPG registers the document and returns it with a stamp -- this stamped original is the document your attorneys will use.

What happens if you have no LPA

If you lose capacity without a registered LPA, nobody -- not your spouse, your adult children, or your closest relatives -- has legal authority to manage your finances or make decisions about your care. Banks will freeze accounts. Utility companies will not accept instructions from family members. Decisions about care placement and medical treatment fall entirely to clinical and social care professionals.

The alternative is an application to the Court of Protection to appoint a deputy. This process costs £3,000-£5,000 in court fees and professional costs, takes 3-6 months, and results in an ongoing annual fee and reporting requirement to the OPG. Deputies are also subject to restrictions that attorneys under an LPA are not.

By contrast, an LPA costs £82 per document in OPG fees plus professional drafting costs of around £250-£500 per LPA. The cost difference is stark, and the LPA is available immediately when needed.

Using, activating, and revoking an LPA

A property and financial affairs LPA can be used as soon as it is registered, with your consent. Many people use it straightaway for convenience -- allowing an attorney to manage accounts on their behalf. A health and welfare LPA can only be used when the donor lacks capacity to make the specific decision in question.

To revoke an LPA, you must have capacity at the time of revocation. You can revoke an LPA at any time while you have capacity by signing a written revocation and notifying the OPG. The revocation is effective immediately, but the OPG should be notified so the registration is cancelled. An attorney cannot revoke an LPA -- only the donor can.

If your attorneys die, disclaim, or become bankrupt (for property LPAs), they can no longer act. If all attorneys are unable to act and there are no replacement attorneys, the LPA is spent -- which is why appointing replacements is important.

Lasting Power of Attorney -- Complete UK Guide -- common questions