Power of Attorney

A Lasting Power of Attorney, usually abbreviated to LPA, is a legal document through which you appoint one or more trusted people, known as attorneys, to make decisions on your behalf.

A Property and Financial Affairs LPA may be used after registration while you still have mental capacity, provided the LPA permits this and you consent. A Health and Welfare LPA can only be used when you lack capacity to make the particular decision concerned.

Many people assume that a spouse, partner or adult child would automatically be able to manage their affairs. This is not generally the case in England and Wales. Without a valid LPA, relatives may need to apply to the Court of Protection for authority to deal with financial matters.

An LPA allows you to decide in advance who should make decisions for you if illness, injury or another condition affects your ability to make those decisions yourself. 

It can provide reassurance that your affairs will be managed by people you know and trust. You can also record instructions and preferences explaining how you would like particular decisions to be approached. 

Without a Property and Financial Affairs LPA, family members may need to apply to the Court of Protection for a Deputyship Order. This can be more expensive, time-consuming and restrictive than putting an LPA in place while you have capacity. 

LPAs are not only for older people. Accidents, strokes and serious illnesses can affect people at any stage of adult life. 

There are two types of Lasting Power of Attorney in England and Wales.

A Property and Financial Affairs LPA covers decisions about money and property. This can include bank accounts, bills, benefits, investments, pensions, tax and property transactions.

A Health and Welfare LPA covers decisions about personal welfare, care, medical treatment and living arrangements. It can only be used when the donor lacks capacity to make the particular decision.

The donor is the person making the LPA. Many people choose to make both types because they cover different areas and one cannot be used in place of the other.

A Property and Financial Affairs LPA authorises your attorneys to make financial decisions within the powers given by the document.

These may include:

• Operating bank or building society accounts
• Paying household bills
• Collecting benefits or pensions
• Managing investments
• Dealing with HMRC
• Buying, selling or managing property
• Paying for care and other expenses

The LPA must be registered with the Office of the Public Guardian before it can be used. Once registered, attorneys may be able to act while you still have mental capacity if the document permits this and you give them authority.

Your attorneys must follow the document, involve you in decisions and act in your best interests.

A Health and Welfare LPA allows your attorneys to make personal welfare decisions when you lack capacity to make the particular decision yourself.

These decisions may concern:

• Medical treatment
• Care and support arrangements
• Moving into a care home
• Where you should live
• Daily routines, diet and personal care
• Contact with other people

You can also choose whether your attorneys should have authority to consent to or refuse life-sustaining treatment on your behalf.

Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA cannot be used merely because it would be more convenient. It can only be used when you lack capacity to make the relevant decision.

Anyone aged 18 or over can make an LPA provided they have the mental capacity to understand and make that decision.

Mental capacity is decision-specific. For an LPA, the donor must understand the nature and purpose of the document, the powers being given to the attorneys and the consequences of creating the LPA.

A certificate provider must sign the LPA to confirm that the donor understands what they are doing and is not being pressured or coerced.

If someone has already lost the required mental capacity, they cannot create an LPA. It may then be necessary for a relative or another suitable person to apply to the Court of Protection.

An attorney should be someone you trust to act responsibly and in your best interests.

Common choices include:

• A spouse or civil partner
• Adult children
• Other relatives
• Trusted friends
• A professional attorney

An individual attorney must be at least 18. Someone appointed under a Property and Financial Affairs LPA cannot act if they are bankrupt or subject to a Debt Relief Order.

Consider the person’s reliability, skills, availability, relationship with other attorneys and ability to manage difficult decisions. You should speak to a proposed attorney before appointing them so that they understand the responsibility and are willing to act.

Yes. You can appoint more than one attorney and many people do so to provide shared responsibility and continuity.

You must decide whether your attorneys will act:

• Jointly for every decision
• Jointly and severally, meaning together or independently
• Jointly for specified decisions and jointly and severally for others

The choice can have significant practical consequences. Requiring every attorney to agree may provide greater oversight, but it can also cause delay. It may also affect whether the LPA can continue if one attorney dies or becomes unable to act.

The arrangement should reflect the nature of the decisions, the relationship between the attorneys and how easily they can communicate.

Attorneys appointed jointly must make every relevant decision together. They must all agree and participate in the decision.

Attorneys appointed jointly and severally may make decisions together or independently. This usually provides greater flexibility if one attorney is unavailable.

It is also possible to require attorneys to act jointly for particular important decisions, such as selling a home, but jointly and severally for other matters.

A joint appointment can create difficulties if an attorney dies, loses capacity or can no longer act. Depending on the wording and whether replacement attorneys were appointed, the whole LPA may cease to operate. Specialist advice can help avoid unintended consequences.

Yes. Replacement attorneys can be appointed to step in if an original attorney dies, loses capacity, disclaims their appointment or becomes unable to act for another recognised reason.

The LPA should explain when and in what order the replacement attorneys are to act. The drafting must work properly with the way the original attorneys have been appointed.

Replacement attorneys cannot ordinarily act simply because an original attorney is temporarily unavailable. They step in when the original appointment has ended in accordance with the LPA and the relevant rules.

Appointing replacements can help prevent the LPA from failing, particularly where only one original attorney is appointed.

An LPA cannot be used until it has been registered with the Office of the Public Guardian.

Once registered, a Property and Financial Affairs LPA may be used while the donor has capacity if the LPA permits this and the donor gives authority. Alternatively, the donor can restrict its use until they lack capacity.

A Health and Welfare LPA can only be used when the donor lacks capacity to make the particular health or welfare decision.

Mental capacity is assessed in relation to the specific decision and at the time it needs to be made. A person may lack capacity for one complex decision while remaining able to make other decisions.

Yes. An LPA must be registered with the Office of the Public Guardian before an attorney can use it.

The document can be registered shortly after it is signed. It is generally sensible not to wait until the LPA is urgently needed because registration takes time and errors may result in the application being returned or rejected.

Registration does not necessarily mean that the attorneys must begin acting immediately. The rules depend on the type of LPA, its wording and whether the donor has capacity.

Once registered, the original document or an accepted paper or digital form of verification may be required by banks, care providers and other organisations.

The Office of the Public Guardian currently advises that registration usually takes approximately eight to ten weeks if the application is completed correctly and there are no objections.

The process may take longer if:

• Information is missing or incorrect
• Signatures are completed in the wrong order
• Instructions are unclear or legally ineffective
• Someone raises an objection
• The Office of the Public Guardian requires further information

An LPA cannot be used before registration. It is therefore sensible to prepare and register the document before it is needed urgently.

Registration times can change, so current processing information should be checked when the application is made.

The Office of the Public Guardian currently charges £92 to register each LPA. Registering both a Property and Financial Affairs LPA and a Health and Welfare LPA therefore costs £184.

A reduction or exemption may be available depending on the donor’s income and benefits. Eligibility is based on the donor’s financial circumstances, not those of the attorneys.

Solicitors’ professional fees are separate from the registration fee. The Legal Practice Solicitors currently offers:

• One type of LPA from £500 plus VAT
• Both types of LPA from £700 plus VAT

Office of the Public Guardian fees are payable in addition. Fees and eligibility requirements should be confirmed when instructions are given because government and professional charges may change.

A Property and Financial Affairs attorney may be able to act while you still have capacity if the LPA has been registered, the document permits this and you give your authority.

This can be helpful if you are physically unwell, have mobility difficulties, are travelling or would like assistance managing particular financial matters.

Your attorney must support you to make your own decisions wherever possible. They cannot take control simply because they disagree with a decision or consider their own approach more convenient.

A Health and Welfare attorney cannot make a decision while you have capacity to make that particular decision yourself.

Attorneys have important legal duties under the Mental Capacity Act 2005 and the terms of the LPA.

They must:

• Follow the LPA’s lawful instructions
• Consider the donor’s preferences
• Support the donor to make their own decisions
• Act in the donor’s best interests when the donor cannot decide
• Avoid conflicts of interest
• Keep the donor’s money separate from their own
• Keep appropriate financial records and accounts
• Maintain confidentiality
• Exercise appropriate care and skill
• Consider the donor’s wishes, values and relationships

An attorney’s authority is limited. For example, an attorney cannot make or alter the donor’s Will.

The Office of the Public Guardian can investigate concerns, and the Court of Protection can remove an attorney who acts improperly.

An attorney’s authority to make gifts is strictly limited.

An attorney may usually make reasonable and affordable gifts:

• On customary occasions such as birthdays, weddings or religious celebrations
• To people who are related or connected to the donor
• To charities the donor supported or might reasonably have supported

The gift must be reasonable when the donor’s finances, wishes and circumstances are considered. The attorney must also consider whether the gift is in the donor’s best interests.

Substantial gifts, tax-planning arrangements, transfers of property or payments benefiting the attorney may require prior authority from the Court of Protection. An instruction in an LPA cannot necessarily override the statutory limits on gifting.

Yes. An LPA allows you to include instructions and preferences.

Instructions are legally binding directions that attorneys must follow, provided they are valid and workable. Preferences explain how you would like attorneys to approach decisions but are not binding in the same way.

Possible provisions might address:

• How investments should be managed
• Whether professional advice should be obtained
• Who should be consulted
• Particular care preferences
• Decisions that attorneys must make jointly

Restrictions should be drafted carefully. An instruction that is unlawful, contradictory, impractical or inconsistent with the purpose of the LPA may be ineffective or removed during registration. Overly restrictive wording can also prevent attorneys from responding to unforeseen circumstances.

You can cancel an LPA while you have the mental capacity to make that decision. A registered LPA is usually cancelled using a formal deed of revocation, which must be sent to the Office of the Public Guardian with the required documents.

You may also be able to remove an individual attorney using a partial deed of revocation, provided the remaining appointment can continue.

You cannot simply add another attorney to an existing LPA. If you want to add an attorney or make substantial changes to the powers, instructions or appointment structure, it will normally be necessary to revoke the existing LPA and make a new one.

Changes of name or address should be reported to the Office of the Public Guardian rather than written onto the registered document.

If you lose capacity without a valid LPA, relatives do not automatically acquire authority to manage your sole finances, property or personal affairs.

For continuing financial decisions, a relative or another suitable person may need to apply to the Court of Protection for appointment as a deputy. The Court decides who should act and what powers they should receive.

Deputyship can involve:

• A court application
• Application and legal costs
• A possible security bond
• Office of the Public Guardian supervision
• Annual reports and supervision fees

Health and welfare decisions will generally be made under the Mental Capacity Act by those responsible for the person’s care or treatment, in their best interests. The Court does not routinely appoint welfare deputies in the same way as financial deputies.

An LPA is made by a person while they have mental capacity. It allows that person to choose their attorneys and provide instructions or preferences about future decisions.

A deputy is appointed by the Court of Protection after a person has lost capacity to make the relevant decisions. The Court chooses whether to appoint the proposed deputy and determines the scope of their authority.

Deputies are generally subject to greater supervision. A property and financial affairs deputy may have to provide a security bond, pay annual supervision fees and submit yearly reports to the Office of the Public Guardian.

Health and welfare deputyships are less commonly granted because the Court will consider whether individual decisions can be made without appointing a continuing welfare deputy.

An Enduring Power of Attorney, or EPA, can remain valid if it was correctly made and signed before 1 October 2007.

EPAs only cover property and financial affairs. They do not authorise attorneys to make health and welfare decisions.

An unregistered EPA may be used with the donor’s authority while the donor has capacity. If the donor is losing or has lost capacity, the attorney must apply to register it with the Office of the Public Guardian.

It is no longer possible to create a new EPA. A person with an existing EPA who still has capacity may wish to review it and consider making a Health and Welfare LPA or replacing the EPA with a modern Property and Financial Affairs LPA.

No. A spouse, civil partner, partner or adult child does not generally have automatic authority to manage your sole finances or make health and welfare decisions on your behalf.

Being a next of kin does not create the same legal powers as being appointed as an attorney.

A spouse may have practical access to a joint account, subject to the bank’s terms and the circumstances, but this does not provide general authority over the other person’s sole accounts, investments, property or pensions.

Without an LPA, relatives may have to apply to the Court of Protection for authority to deal with financial matters. An LPA allows you to choose who should act and define the powers they will have.

An LPA made in England and Wales is legally binding in England and Wales. It will not necessarily be recognised automatically in another country.

Recognition depends on the law and requirements of the country in which the attorney needs to act. A foreign organisation may request:

• A certified copy of the LPA
• Legalisation or an apostille
• A certified translation
• A legal opinion
• A separate local power of attorney

An attorney does not have to live in the UK and may be able to act from abroad, although this can create practical difficulties.

Anyone with overseas property, investments, bank accounts or care arrangements should obtain advice in the relevant jurisdiction as well as advice in England and Wales.

There is no legal requirement to use a solicitor. The government provides forms that individuals can complete themselves.

However, an LPA is a powerful legal document and mistakes can result in rejection, delay or provisions that do not operate as intended. Legal advice may be particularly valuable where:

• There are complex family relationships
• Attorneys may disagree
• A professional attorney is required
• The donor owns a business
• There are overseas assets
• There are concerns about capacity or undue influence
• The donor wants detailed instructions or restrictions
• Different attorneys are required for personal and business affairs

A solicitor can explain the available options, draft appropriate provisions, oversee correct execution and submit the registration application.