When people hear the words “Lasting Power of Attorney,” they often assume it is something to think about later in life — perhaps when a parent begins to struggle, or when retirement is on the horizon. In reality, a Lasting Power of Attorney (LPA) is one of the most important legal documents any adult can have in place, regardless of age or health.
This article explains what an LPA is, why you might need one sooner than you think, and what can happen if you don’t have one when it matters most.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that authorises one or more people — known as your attorneys — to make decisions on your behalf if you lose the mental capacity to make them yourself. It can also be used for some decisions (if you choose) while you still have capacity, which can be a practical convenience in some circumstances.
There are two distinct types, and they cover very different ground.
There are two distinct types, and they cover very different ground.
A Property and Financial Affairs LPA allows your attorney to manage things like your bank accounts, pay bills, deal with investments, and sell your home if necessary. It can be used as soon as it is registered — with your permission — even if you retain full capacity.
A Health and Welfare LPA gives your attorney authority over decisions about your medical treatment, care arrangements, and day-to-day personal welfare. Crucially, this type can only be used once you have lost capacity to make those decisions yourself. It can include a specific instruction about life-sustaining treatment, giving your attorney the ability to consent to or refuse it on your behalf.
Why It Is Not Just for Older People
Capacity can be lost suddenly and at any age. A serious accident, a stroke, a brain injury, or a sudden illness can affect anyone. If something like that happened to you tomorrow and you had no LPA in place, the people closest to you — your spouse, your parents, your children — would have no automatic legal authority to manage your affairs or make decisions about your care.
Many people assume that a spouse or next of kin can step in automatically. This is one of the most common and costly misconceptions in this area of law. There is no general legal rule that gives a family member authority over another adult’s finances or healthcare decisions simply by virtue of their relationship. Banks will freeze accounts. Decisions about care placements and medical treatment will be made without input from the people who know you best.
The only route available at that point is an application to the Court of Protection for a deputyship order — a process that is significantly more expensive, time-consuming, and distressing than putting an LPA in place in advance would ever have been. Our Wills & Inheritance team regularly advises clients on avoiding exactly this situation.
The Court of Protection: The Alternative Nobody Wants
If you lose capacity without an LPA, anyone wishing to manage your affairs must apply to the Court of Protection to be appointed as your deputy. This process typically takes several months, involves court fees, ongoing supervision, and annual reporting requirements. The costs involved — both financial and emotional — can be substantial. And unlike an LPA, you have no say in who the court appoints or what powers they are given.
The contrast is stark. An LPA is something you create and control while you have capacity. You choose who your attorneys are, you can set out conditions and preferences, and the process is straightforward when managed with professional help. A deputyship is imposed by a court after the fact, at a moment when your family is already under considerable stress.
Choosing the Right Attorney
Your attorney does not need to be a solicitor or a financial professional. Most people choose a trusted family member or close friend. However, it is worth thinking carefully about who is best placed for each role. The person you trust most emotionally may not be the right choice for managing complex financial affairs. It is entirely possible — and often sensible — to appoint different attorneys for each type of LPA.
You can also appoint more than one attorney, and you should consider a replacement attorney in case your first choice is unable to act. The document also allows you to set out specific instructions and preferences, which provides an additional layer of reassurance. If you are also thinking about what happens to your estate after your death, our team can help you with making a will at the same time.
When Should You Make One?
LPAs can only be made by someone who has mental capacity at the time of signing, so in many cases the sooner the better. If you wait until there is a health concern and capacity is already in question, it may be too late. The application can be refused, or disputes may arise about whether you truly understood what you were signing.
The registration process itself takes time and the document cannot be used until it has been registered with the Office of the Public Guardian. This is another reason not to leave it until there is urgency. For families where elderly relatives are involved, our Advising the Elderly service may also be relevant.
Changing a Lasting Power of Attorney
Once an LPA has been signed, it cannot easily be changed. You can, whilst you still have capacity, cancel a registered LPA or remove one, or more, attorneys. You cannot however add a new attorney to an LPA which already exists. If you wanted to appoint someone new to be your attorney then you would need to create a new Lasting power of Attorney.
A Note on Enduring Powers of Attorney
If you made a Power of Attorney before October 2007, you may have an Enduring Power of Attorney (EPA) rather than an LPA. EPAs are no longer available to create but remain valid if properly made. Importantly, an EPA must be registered with the Office of the Public Guardian as soon as the donor begins to lose — or has lost — mental capacity. An unregistered EPA cannot lawfully be used in those circumstances. If you have an EPA and are unsure of its status, it is worth taking advice.
How We Can Help
At Fiona Bruce Solicitors, our Private Client team regularly helps individuals and families put Lasting Powers of Attorney in place. We take time to understand your circumstances, explain your options clearly, and manage the registration process on your behalf.
If you would like to discuss putting an LPA in place, please get in touch with our team today.
The contents of this post do not constitute legal advice and are provided for general information purposes only ■
