Lasting Power of Attorney

Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that enables individuals (known as ‘the donor’) to appoint people (known as the ‘attorneys’) to make decisions about their welfare, money or property, either now or in the future.

There are two different types of LPAs:

- Property and Financial Affairs LPAs - will allow your attorney(s) to make decisions regarding your property and financial affairs for example buy or sell property, manage investments and bank accounts.

- Health and Welfare LPAs - will allow your attorney(s) to make decisions regarding your health and welfare, for example to give or refuse consent to medical treatment, where you live and with whom, what you wear, what you eat and how you spend your day and your attorney(s) may access your personal information such as medical records.

Who should make a lasting power attorney?

Anyone can potentially become physically or mentally incapable following an illness or accident, regardless of age or circumstances. In order to make an LPA you must be aged 18 or over and have the mental capacity to appoint an attorney to manage your affairs on your behalf.

A will only operates after death, so it is a wise precaution to appoint attorneys you trust to make important decisions on your behalf should the need arise during your lifetime. On your death the powers granted by an LPA are terminated. An LPA can therefore provide you and your attorney(s) with peace of mind.

Who can I choose as my attorney?

In theory, anyone who is over 18 can be an attorney. In the case of an attorney appointed to a Property and Financial Affairs LPA, however, they must not be bankrupt.

It is crucial to choose someone who can be trusted implicitly when appointing your attorney(s) and it is essential you seek their agreement to act to avoid any surprises. This is often one or more family members, trusted friends or professional advisers. Any attorney appointed must always act in the ‘best interests’ of the donor.

At the time of making your LPA you can appoint a replacement attorney(s) to act in place of any attorney who is no longer able to or does not wish to make decisions on your behalf as an attorney. Your attorney(s) cannot choose who can replace them.

How can my attorneys act?

If more than one attorney is appointed, they can be appointed “jointly” and must therefore do everything together, or “jointly and severally” so they can act together or individually on all issues or a combination of both. If attorneys are appointed to act jointly the death, bankruptcy or loss of capacity of any one of them will cause the LPA to be revoked, unless a replacement attorney is named in the LPA. For administrative reasons an appointment under a ‘joint and several’ basis is often preferred.

When can my LPA be used?

An LPA only takes effect once it has been registered with the Office of the Public Guardian (‘OPG’). It can be registered whenever you choose, but if it is registered immediately after it has been completed, it is simply stored safely and only put into use once it is needed. Registration itself does not mean that the individual in question has lost capacity. The important thing to remember is that an LPA cannot be used at all until it is registered.

What is the process of registering an LPA?

A completed LPA needs to be sent to the OPG, along with the requisite court fee. The fee is currently £92 per document, although some people may qualify for a fee exemption. In our experience, it can take 10-15 weeks for the registration process to be completed by the OPG.

Can I cancel my LPA?

An LPA can be revoked by the donor at any point while they retain capacity to do so. This must be done by way of formal revocation. If an individual’s attorney is their spouse or civil partner, their appointment will be terminated by a divorce, dissolution or annulment of the marriage or civil partnership, unless it has been expressly stated otherwise in the LPA.

Risks of not having an LPA

If you lose mental capacity without an LPA in place, someone (whom you may not wish to do so) could apply to the Court of Protection to be appointed as your deputy (please see separate guidance note). This is a time consuming and very expensive process in comparison to the costs of preparing an LPA.

Can my attorney(s) make gifts on my behalf?

An Attorney has limited power to make gifts of a Donor’s money or property. The recipient must either be a relative of the Donor or connected to him (this could be the Attorney himself) or a charity to which the Donor has made gifts in the past or might be expected to make gifts if he had capacity. Any gift made must be seasonal i.e. related to a specific occasion like a birthday. The value of the gift must not be unreasonable, having regard to the circumstances and the size of the Donor’s estate.

Enduring Powers of Attorney

An Enduring Power of Attorney (EPA) was effectively replaced by the LPA in October 2007. It is no longer possible to make a new EPA or amend it in any way. If you have already made an EPA, it can still be used as long as it was correctly signed before 1st October 2007 and your choice of attorneys remains valid and accurate. Please note that an EPA is limited to property and financial affairs and does not include Health and Welfare decisions.

Disclaimer: This briefing is intended to highlight issues only for the purposes of general interest and is not intended to be a comprehensive statement of the law. Although we have taken care over the information, you should not rely on it as legal advice. We do not accept any liability to anyone who does rely on its content. Last updated February 2024. Grange Legal Limited is a private limited company with registration number 15342472.