Key Facts
- A Lasting Power of Attorney is a legal document created under the Mental Capacity Act 2005 that allows you (the donor) to appoint one or more people (your attorneys) to act on your behalf.
- Mental capacity can be lost at any age through accident, illness, or conditions like dementia.
- An LPA works by transferring specific decision making powers from you to your chosen attorneys.
- The two types of LPA in England and Wales are a Property and Financial Affairs LPA and a Health and Welfare LPA, and they cover completely different areas of your life.
A Lasting Power of Attorney is a legal document that gives someone you trust the authority to make decisions on your behalf if you lose the mental capacity to make them yourself. It is one of the most important legal protections available to adults in England and Wales, yet most people do not have one in place until it is too late.
Without a Lasting Power of Attorney (LPA), your family cannot access your bank accounts, sell your property, or make decisions about your medical care, even if they have lived with you for decades. The only alternative is a court application for deputyship, which is slower, more expensive, and gives your family far less control than an LPA would have provided.
What a Lasting Power of Attorney Actually Is
A Lasting Power of Attorney is a legal document created under the Mental Capacity Act 2005 that allows you (the donor) to appoint one or more people (your attorneys) to act on your behalf. The document only takes legal effect once it has been registered with the Office of the Public Guardian (OPG).
Lasting Powers of Attorney apply in England and Wales only. Scotland has a different system called a continuing power of attorney, and Northern Ireland has its own arrangements. If you live in England or Wales, an LPA is the correct document.
An LPA is not the same as a Will. A Will deals with what happens after you die. An LPA protects you while you are alive but unable to manage your own affairs. The two documents work together, but they serve completely different purposes.
Why You Need a Lasting Power of Attorney
Mental capacity can be lost at any age through accident, illness, or conditions like dementia. Without an LPA in place, nobody has the automatic legal right to manage your affairs, not even your spouse, children, or closest family members.
The consequences of not having an LPA are severe and immediate. Your bank can freeze your accounts. Your mortgage and bills may go unpaid. Decisions about your medical treatment and living arrangements fall to professionals who do not know your wishes. Your family is left watching, unable to act, while a court application that could take months works its way through the system.
An LPA removes that uncertainty. It puts you in control of who makes decisions for you, how those decisions are made, and what your preferences are. It is protection that works precisely because you set it up in advance.
How a Lasting Power of Attorney Works in Practice
An LPA works by transferring specific decision making powers from you to your chosen attorneys. The transfer only becomes active when you lose mental capacity (for a health and welfare LPA) or when you choose to activate it (for a property and financial affairs LPA).
Your attorneys must always act in your best interests. They are legally required to follow the principles of the Mental Capacity Act 2005, which means they must consider your past and present wishes, consult with relevant people in your life, and choose the least restrictive option available.
You can include specific instructions and preferences in your LPA. Instructions are legally binding requirements your attorneys must follow. Preferences are wishes your attorneys should consider but are not legally obliged to follow in every situation.
Not sure where to start with your LPA?
Download our free Lasting Power of Attorney Checklist or book a free consultation with our estate planning team.
What Is The Two Types of Lasting Power of Attorney?
The two types of LPA in England and Wales, and they cover completely different areas of your life. Most people need both.
Property and financial affairs LPA covers everything related to your money, property, and financial decisions. This includes managing bank accounts, paying bills, buying or selling property, handling investments, and dealing with tax and benefits.
Health and welfare LPA covers decisions about your medical treatment, daily care, where you live, and your overall wellbeing. This type can only be used when you lack the mental capacity to make the specific decision in question.
Each type must be created and registered separately. They can name different attorneys if you want different people handling your finances and your health decisions.
Who Can Make a Lasting Power of Attorney?
Anyone aged 18 or over who has mental capacity can create a Lasting Power of Attorney. You must be able to understand what an LPA is, what powers it gives to your attorneys, and the consequences of creating one.
Mental capacity is assessed at the time you create the LPA, not at the time it is used. This is why making an LPA sooner rather than later is so important. If you wait until a diagnosis of dementia or another condition, there may not be enough time or capacity left to create one.
You do not need to be ill, elderly, or facing any particular risk to make an LPA. Healthy adults in their thirties and forties make LPAs because they understand that capacity can be lost suddenly through accident or illness at any stage of life.
How to Choose Your Attorneys
Your attorneys are the people who will make decisions on your behalf, so choosing the right person is one of the most important parts of the process. An attorney must be aged 18 or over and must have mental capacity themselves.
Most people choose a spouse, partner, adult child, or close family member. You can also appoint a professional estate planner or solicitor as an attorney, which can be helpful if family dynamics are complicated or if your financial affairs are complex.
You can appoint more than one attorney and choose whether they must act together (jointly), independently (jointly and severally), or jointly for some decisions and independently for others. You can also appoint replacement attorneys who step in if your original attorney can no longer act.
How the LPA Registration Process Works
An LPA must be registered with the Office of the Public Guardian before it can be used. Registration currently takes approximately 20 weeks from submission, though the OPG is working to reduce this timeline through its digital transformation programme.
What Happens If You Do Not Have a Lasting Power of Attorney?
If you lose mental capacity without an LPA in place, the only way someone can gain legal authority to manage your affairs is through a Court of Protection deputyship application. This process is significantly more expensive, more time consuming, and more restrictive than an LPA.
The simplest way to avoid this situation is to create an LPA while you have the capacity to do so. It is one of the few legal documents where the cost of not having it is far greater than the cost of setting it up.
How At Elwyn & Mabel, we help You Set Up a Lasting Power of Attorney
At Elwyn & Mabel Estate Planning, the LPA process is handled from start to finish. The service begins with a consultation to understand your circumstances, moves through drafting and signing, and ends with registration with the OPG. Every document is checked before submission to avoid the delays and rejections that come from errors on the forms.
If you want a complete overview of how lasting powers of attorney work, including the different types, choosing attorneys, costs, and the registration process,
Frequently Asked Questions About Lasting Powers of Attorney
Can I make a lasting power of attorney if I have been diagnosed with dementia?
You can make an LPA as long as you have the mental capacity to understand what the document is and what powers it gives to your attorneys. An early stage dementia diagnosis does not automatically prevent you from creating an LPA. However, the window of opportunity narrows as the condition progresses, which is why acting quickly after a diagnosis is essential.
Does my spouse automatically have the right to manage my affairs if I lose capacity?
No. In England and Wales, no one has an automatic legal right to manage another person’s affairs, regardless of their relationship. Without a lasting power of attorney, your spouse would need to apply to the Court of Protection for a deputyship order, which can take months and costs significantly more than an LPA.
What is the difference between an LPA and an ordinary power of attorney?
An ordinary power of attorney only works while you have mental capacity. The moment you lose capacity, it becomes invalid. A lasting power of attorney is specifically designed to remain in force after you lose capacity, which is precisely when you need it most. For long term protection, an LPA is the correct document.
How long does it take to set up and register an LPA?
The drafting and signing process can be completed in a matter of weeks. Registration with the OPG currently takes approximately 20 weeks from submission. Working with a professional estate planner can speed up the drafting phase and reduce the risk of rejection, which would add further delays.
Can I cancel or change my LPA after it has been registered?
Yes. As long as you have mental capacity, you can revoke (cancel) your LPA at any time by completing a deed of revocation and notifying the OPG. If you want to change the attorneys or the terms, you would need to revoke the existing LPA and create a new one.
What Is Get Your Free LPA Checklist?
If you are thinking about setting up a Lasting Power of Attorney, the free LPA Checklist from At Elwyn & Mabel, we give you a plain English, step by step guide covering everything you need to know before you start. Download it below.
TL;DR: What Is a Lasting Power of Attorney and How Does It Work?
A lasting power of attorney is a legal document that lets you choose who makes decisions on your behalf if you lose mental capacity.
- There are two types: property and financial affairs, and health and welfare. Most people need both.
- An LPA must be registered with the Office of the Public Guardian before it can be used. Registration currently takes around 20 weeks.
- Without an LPA, your family must apply for a Court of Protection deputyship, which is slower, more expensive, and gives them less control.
- Anyone aged 18 or over with mental capacity can make an LPA. You do not need to be ill or elderly.
More From Elwyn & Mabel
Download the free LPA Checklist: Get a plain English, step by step checklist covering everything you need to know about setting up a Lasting Power of Attorney. Download your free copy
Book a free consultation: Speak with our team at Elwyn & Mabel about your Lasting Power of Attorney. Book your free no obligation consultation today.