Most people assume that if they became unable to manage their own affairs, their husband, wife, partner or children could simply step in. In England and Wales, that is not the case. No family member has an automatic legal right to operate another adult’s bank account, sell their home, or make decisions about their care, simply because they are related. Without the right document in place, the people closest to you may have to apply to the court for permission to help you, at a time when they are already under considerable strain.

A Lasting Power of Attorney (LPA) avoids this. It allows you to choose, while you are able to, the people you trust to make decisions on your behalf if you cannot. This article explains what an LPA is, the two types available, how one is made and registered, and what happens when there is none.

The Legal Framework

Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005, which came into force on 1 October 2007. The person making the LPA is known as the donor, and the people appointed to act for them are known as attorneys. A donor must be aged 18 or over and must have mental capacity to make the LPA at the time it is signed.

The Act starts from the presumption that every adult has capacity unless it is established otherwise. A person lacks capacity in relation to a particular decision if, at the time it needs to be made, they are unable to understand, retain or weigh up the relevant information, or to communicate their decision, because of an impairment of the mind or brain. Capacity is therefore assessed decision by decision, and it can fluctuate. Anyone acting under an LPA must act in the donor’s best interests and must support the donor to make their own decisions wherever possible.

The Two Types of LPA

There are two separate LPAs, and each must be made and registered in its own right.

1. Property and Financial Affairs. This covers decisions about money and property: managing bank and building society accounts, paying bills, collecting pensions and benefits, dealing with investments, and buying or selling property. Once registered, it can be used while the donor still has capacity, with their permission, which many people find helpful if they simply want practical support. It can then continue to be used if capacity is lost.

2. Health and Welfare. This covers decisions about daily routine, medical care, moving into a care home and, if the donor chooses to give this authority expressly, life-sustaining treatment. Unlike the financial LPA, it can only be used once the donor lacks capacity to make the decision in question.

Most people benefit from having both. A financial LPA alone leaves the donor’s care decisions to others; a health and welfare LPA alone leaves their money and home without anyone authorised to manage them.

Making and Registering an LPA

An LPA is made on prescribed forms, which can be completed on paper or online. The donor chooses one or more attorneys and decides how they should act: jointly, so that all must agree on every decision; jointly and severally, so that any of them can act alone; or jointly for some decisions and jointly and severally for others. Replacement attorneys can also be named, to step in if an original attorney can no longer act. The donor may add preferences and binding instructions, for example about how their home should be dealt with or where they would like to live.

Each LPA must also be signed by a certificate provider: an independent person who has known the donor well for at least two years, or who has relevant professional skills, such as a solicitor or doctor. The certificate provider confirms that the donor understands the LPA and is not being pressured into making it. This safeguard is one of the most important features of the document.

An LPA cannot be used until it has been registered with the Office of the Public Guardian (OPG). The registration fee is currently £92 for each LPA, with reductions and exemptions available for donors on lower incomes or certain benefits. Registration can take several weeks or months, so it is sensible to register as soon as the document is signed rather than waiting until it is needed.

What Happens Without an LPA

If a person loses capacity without a registered LPA, nobody has authority to manage their financial affairs. Banks will generally not allow a relative to deal with an account held in the person’s sole name, and a property in their sole name cannot be sold, even to pay for their care.

The family’s route is then an application to the Court of Protection for someone to be appointed as a deputy. The process involves court fees, detailed forms and evidence of the person’s incapacity, and it commonly takes many months. Once appointed, a deputy is supervised by the OPG, must usually submit an annual report and pay an annual supervision fee, and may be required to take out a security bond. The person chosen by the court may not be the person the individual would have chosen themselves.

For health and welfare matters, deputies are appointed far less often. In practice, decisions are usually made by the professionals involved, in what they assess to be the person’s best interests. Families will normally be consulted, but they cannot insist on a particular outcome in the way that an attorney appointed under an LPA could.

Common Misconceptions

“My spouse can deal with everything.” Being married or in a civil partnership does not give a spouse authority to manage the other’s sole accounts or property.
“I have a will, so I am covered.” A will takes effect only on death. It gives no one authority to act during the donor’s lifetime.
“I am too young to need one.” Capacity can be lost suddenly through an accident, a stroke or serious illness, at any age.
“We will sort it out if it happens.” Once capacity has been lost, it is too late to make an LPA. The only route is then through the court.

Older Documents and Upcoming Changes

Enduring Powers of Attorney made before 1 October 2007 remain valid, but they cover financial matters only and must be registered with the OPG once the donor is losing, or has lost, capacity. Anyone holding an older document should check whether it still reflects their wishes and whether a health and welfare LPA should be added.

The Powers of Attorney Act 2023 provides for the process of making and registering LPAs to be modernised and moved largely online, with additional safeguards against fraud and undue pressure. The substance of the document, and the importance of making one while capacity remains, does not change. This article reflects the position in England and Wales; Scotland and Northern Ireland have their own systems.

A Practical Checklist

Make both a Property and Financial Affairs LPA and a Health and Welfare LPA.
Choose attorneys you trust, and consider naming replacement attorneys.
Think carefully about whether attorneys should act jointly or jointly and severally.
Record your preferences and any instructions clearly, including your views on life-sustaining treatment.
Register each LPA with the Office of the Public Guardian as soon as it is signed.
Review your LPAs alongside your will, particularly after a marriage, separation or bereavement.

Conclusion

A Lasting Power of Attorney is one of the simplest legal documents a person can put in place, and one of the most valuable. It costs little, can be prepared in a short time, and spares the people closest to you a court process at the moment they can least afford one. The only requirement that cannot be met later is the one that matters most: it must be made while you still have capacity. If you would like advice on preparing or registering an LPA, or on reviewing an existing power of attorney, we recommend seeking legal advice at the earliest opportunity.

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