Introduction
Who will make the important decisions about your finances, health and care if you no longer can? Setting up a Lasting Power of Attorney means you can name who you would like to help manage your affairs if at some point you can’t manage them yourself.
An LPA is a legal document that allows someone you trust to make decisions on your behalf if you can’t do it yourself. Situations where you might not be able to make your own decisions might include:
Accidents and sudden illnesses (eg stroke)
Longer term illnesses and conditions which lead to loss of ability, eg dementia
Being out of action of incapacitated temporarily, eg after major surgery or a procedure where you might be unconscious or sedated for some time.
In the UK, LPAs are regulated by the Office of the Public Guardian and need to be registered to be legally valid.
The two types of Lasting Power of Attorney
There are two types of LPA.
Health and Care Decisions LPA: This type of LPA covers decisions about your personal health and well-being. It allows your appointed person (known as your attorney) to make decisions regarding your medical treatment, where you live, and even your day-to-day care, such as what you eat or how you're dressed. This LPA only comes into effect when you’ve lost ‘mental capacity’ (see below). If you still have the capacity to make decisions, your wishes will always take priority.
Financial Decisions LPA: This LPA gives someone the authority to manage your finances and property. Your attorney can handle tasks such as paying bills, managing bank accounts, collecting pension payments, or even selling your house if needed. Unlike the Health and Welfare LPA, this can come into effect as soon as it’s registered, with your permission, even if you still have capacity. It’s a practical option if you’re physically unable to manage your affairs, for instance, if you’re going abroad for an extended period or find it difficult to handle your own financial responsibilities.
What is mental capacity?
In the context of a Lasting Power of Attorney (LPA) in the UK, mental capacity means a person's ability to make decisions for themselves at the time the decision is needed. To have mental capacity means you can understand, remember, and weigh up relevant information to make and communicate a decision.
Someone must have mental capacity to set up an LPA. Sometimes that’s not possible, for example if an LPA wasn’t set up in time, or if someone never had the capacity to manage their own affairs. In these cases there is a different process to follow, to set up a ‘Deputy’ – someone appointed by the Court of Protection to make decisions on a person’s behalf.
If you’re a younger person, you might feel that you don’t need an LPA. But sudden illness, accidents, or unexpected health conditions can affect anyone at any time. Having an LPA in place could give you peace of mind. You’ll know that if the worst happens, someone you trust will be able to step in and make decisions in your best interests.
How to get an LPA
Setting up an LPA in the UK is a fairly straightforward process. The main steps to follow are:
Choose your attorney(s).
Fill in the forms to appoint them.
Register your LPA with the Office of the Public Guardian (this can take up to 16 weeks).
You can follow the steps on the gov.uk website or ask a solicitor or other professional to complete the process on your behalf.
Getting professional help
It’s possible to complete and register an LPA yourself but many people choose to get help from a legal professional. Although the forms appear straightforward, they have to be completed, signed and witnessed correctly. Even a small mistake can lead to the LPA being rejected, which means delays. Time can make a difference when someone’s capacity is decreasing, so if you’re on a tight timescale a legal professional can make sure nothing holds the process up.
A professional will also make sure to take account of everything in your own particular circumstances. You might have some specific preferences around your future health and care. Or with a financial LPA you might have to decide how much control your attorney will have over certain trusts and investments. If you are a business owner, there will be other important aspects to consider.
Legal professionals can explain in more detail the full extent of power being given to your attorney, and what that might mean in practice. They can amend an LPA to restrict that power if someone feels it appropriate.
Questions to consider when setting up an LPA
Do I need one or both types of LPA? Consider if you would like your attorney(s) to be able to manage health and welfare, and your financial and property affairs, or just one.
Who should be my attorney? It should be someone you trust, who understands your wishes and is capable of handling the responsibility. Most people choose a close family member or friend. You could also appoint a professional, like a solicitor, although this comes with additional costs.
Do I need more than one attorney? You might want to appoint more than one person to share the responsibility. If so, think about whether they should always agree on a decision, or if they can act independently. You might also need to think about what happens if your attorney themself becomes incapacitated. You can appoint ‘replacement attorneys’ to step in if your primary attorney can no longer act on your behalf. This way there’s always someone to manage your affairs if needed.
What decisions do I want my attorney to make? You can specify whether there are any situations where you would not like the attorney to be able to make a decision. For example you might limit your attorney's ability to make certain health care decisions (such as refusing life-sustaining treatment). Or you could restrict your attorney’s ability to sell your home or deal with specific financial assets.
Do I want to allow my attorney to make decisions as soon as the LPA is registered? This only applies to the Property and Financial Affairs LPA. You may want your attorney to manage your affairs even if you still have capacity but are unable to handle them yourself.
Costs of setting up an LPA
In the UK, it costs £82 to register each LPA with the Office of the Public Guardian. So, if you’re setting up both a Health and Welfare LPA and a Property and Financial Affairs LPA, the total cost will be £164. If you’re on a low income or receive certain benefits, you may be eligible for a reduction or exemption.
If you choose to use a solicitor or other professional to help with the process, there will be additional legal fees.
Can you cancel an LPA?
You can cancel (or revoke) a Lasting Power of Attorney (LPA) in the UK, provided you have the mental capacity to make that decision. In some situations the LPA will be automatically cancelled – for example if your attorney is your spouse or civil partner, the LPA is automatically cancelled if you divorce or end your civil partnership, unless you’ve specifically stated otherwise in the LPA.
As with other important documents such as wills, it’s important to review an LPA whenever there are any significant changes in your circumstances.
What’s the difference between an Enduring Power of Attorney (EPA) and an LPA?
Before 2007 a slightly different document existed, called an Enduring Power of Attorney (EPA). There were a couple of key differences:
An EPA did not have to be registered until the person lost mental capacity. This can leave them open to misuse in some situations.
EPAs only applied to property and financial affairs and not to health and welfare.
If you or a relative has an EPA in place it might be worth getting some advice about whether it still suits your needs or whether it would be better to replace it with an LPA.
How Trustestate can help
You may want a solicitor or other professional to help you complete and register your LPA, especially if your situation is at all complicated. Trustestate can help you get in touch with a trusted adviser and schedule an initial consultation.
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