A lasting power of attorney is a legally recognised document that enables you to appoint one or more trusted individuals to make decisions for you if you lose mental capacity in the future. This essential tool ensures your personal, financial and medical wishes are respected when you are no longer able to make those decisions yourself. The following guide explains what a lasting power of attorney is, the different types available, how to create one in the UK and why it should be part of your broader estate planning strategy.

Key Takeaways

• A lasting power of attorney enables you to appoint trusted persons (attorneys) to manage your affairs if you lose the ability to make decisions.
• There are two main forms of lasting power of attorney: health and welfare, and property and financial affairs.
• Without a lasting power of attorney, friends and family may need to apply to the Court of Protection to gain legal authority, which can be costly, time-consuming and stressful.

What Is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal instrument that allows you, the donor, to choose someone you trust (an attorney) to make decisions on your behalf if you lose mental capacity. You must have the mental capacity to create an LPA when you make it, and once registered, it gives your appointed attorneys lawful authority to act in your best interests.

In the UK, there are two distinct types of lasting power of attorney:

Health and Welfare LPA – covers decisions about your health, daily care and medical treatment once you no longer have capacity.

Property and Financial Affairs LPA – covers managing your money, paying bills, handling bank accounts and overseeing property, and can be used as soon as it is registered with your permission.

Why a Lasting Power of Attorney Matters

A lasting power of attorney protects you and your family by ensuring that someone you trust can manage your affairs if you are unable to, for example due to illness, injury or cognitive decline. Without an LPA, family members must apply to the Court of Protection for a deputyship order, a process that is both time-consuming and expensive.

Making an LPA is a proactive step in estate planning, complementing your will and other planning documents to ensure continuity of decision-making throughout life and into later years.

How to Set Up a Lasting Power of Attorney

To create a lasting power of attorney, you must:

• Be at least 18 years old and have mental capacity at the time of creation.
• Complete the appropriate LPA forms for the type(s) of powers you wish to grant.
• Choose one or more trusted attorneys who will act on your behalf.
• Register the completed document with the Office of the Public Guardian (OPG) for it to become legally valid.

Once registered, the Office of the Public Guardian maintains a record of your lasting power of attorney and ensures that attorneys act in accordance with legal obligations. Registration involves a fee, which is set by the government and subject to change.

Choosing Your Attorney

Selecting the right attorney is critical. Attorneys should be individuals you trust implicitly, who understand your values and will act in your best interest. You can appoint more than one attorney and specify whether they must act jointly or can act independently.

Consider choosing attorneys who are capable of managing complex decisions and communicating effectively with family members and professionals when needed.

Health and Welfare LPA

A health and welfare lasting power of attorney comes into effect only when you lose the capacity to make decisions for yourself. This type of LPA allows your attorney to make key decisions about your care, treatments and day-to-day well-being.

Decisions under this LPA can include where you live, the standard of care you receive, and other personal welfare preferences.

Property and Financial Affairs LPA

The property and financial affairs LPA can be used as soon as it is registered, provided you agree at the outset. Attorneys under this power can manage financial matters such as bank accounts, bills, pensions, investments and even the sale of property if necessary.

This type of lasting power of attorney ensures that your financial affairs continue to be managed efficiently and according to your wishes, helping maintain financial stability during periods of incapacity.

Registering and Managing Your LPA

The LPA document must be submitted to the Office of the Public Guardian for registration before it becomes legally effective. This involves submitting the original paperwork and paying the prescribed fee.

The registration process includes a period where interested parties can raise objections, ensuring that the document is genuine and created without undue influence. Once registered, the document can be used when the donor loses capacity or, for property and financial affairs, earlier if permitted.

Responsibilities of Attorneys

Attorneys must always act in your best interests and follow any instructions set out in the lasting power of attorney. They have legal duties to:

• Keep your financial matters separate from their own.
• Make decisions that reflect your known wishes and best interests.
• Maintain clear records of actions taken on your behalf.

These responsibilities protect your affairs and provide transparency in how your attorneys exercise their powers.

Consequences of Not Having an LPA

Without a lasting power of attorney, no one can legally make decisions on your behalf if you lose capacity. In such a situation, family members must apply to the Court of Protection to be appointed as deputies, a process that is costly, lengthy and stressful for loved ones.

This underscores the importance of setting up lasting powers of attorney early, before capacity is in question, to avoid future legal challenges.

Myths and Misunderstandings

A common misconception is that family members automatically have the right to make decisions on your behalf without an LPA. This is not the case even for spouses or civil partners. Without a valid lasting power of attorney, legal authority must be obtained through the courts.

Understanding this distinction is crucial to ensuring your plans are legally effective and aligned with your intentions.

Frequently Asked Questions

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that lets you appoint someone to make decisions for you if you lose the ability to do so yourself.

What Are the Types of LPAs?

The two main types are:

• Property and Financial Affairs LPA
• Health and Welfare LPA

Who Can Be an Attorney?

Anyone you trust, over the age of 18 and capable of acting in your best interests.

When Does an LPA Take Effect?

A Property and Financial Affairs LPA can take effect once registered. A Health and Welfare LPA only takes effect if you lack mental capacity.

Can an LPA Be Changed?

Yes as long as you have mental capacity. Once capacity is lost, it cannot be changed.