Lasting Power of Attorney Solicitors

A lasting power of attorney lets you choose, in advance, who will make decisions on your behalf if you become unable to make them yourself.

It only works if you put it in place while you still have mental capacity. That is the entire mechanism, and it is why so many families discover the problem at exactly the moment it can no longer be solved.

The two types, and why you need both

LPAs were created by the Mental Capacity Act 2005. There are two, and they are entirely separate documents.

Property and Financial Affairs

Covers money and property: operating bank accounts, paying bills, collecting pension and benefits, managing investments, and selling or letting property.

This one can be used while you still have capacity, if you permit it — useful during illness, hospital stays, or extended time abroad. You choose when you sign.

Health and Welfare

Covers medical treatment, care arrangements, where you live, and day-to-day matters like diet and routine. It can also include a decision on whether your attorneys may give or refuse consent to life-sustaining treatment.

This one can only be used once you lack capacity to make the decision yourself.

Why both matter

People often make only the financial LPA, on the basis that family will naturally be consulted about care.

They will be listened to, but they will not have legal authority. Where there is disagreement — between siblings, or between family and a care provider — the person with authority decides. Without a Health and Welfare LPA, that is not your family.

What happens without one

If you lose capacity with no LPA in place, nobody can simply take over.

Your spouse cannot access accounts in your sole name. A joint account may be frozen. Nobody can sell your house, manage your investments, or in some cases arrange care funding.

The only route is an application to the Court of Protection for a deputyship order. Compared with an LPA, deputyship is:

• Slower — commonly several months, sometimes longer
• Substantially more expensive — application fees, legal costs, and often an annual supervision fee
• Ongoing — deputies file annual reports and are supervised by the Office of the Public Guardian
• Not your choice — the court appoints, and while it usually appoints a family member, it does not have to
• More restricted — deputies have narrower powers, and significant decisions need separate court approval

The court will also rarely grant a personal welfare deputyship. Health and care decisions are generally taken by professionals in the person's best interests, with family consulted but not deciding.

An LPA made in advance avoids all of this. The difference in cost and disruption is considerable.

Choosing your attorneys

This is the decision that deserves the most thought.

Who can act? Anyone over 18 with capacity. For a financial LPA they must not be bankrupt or subject to a debt relief order. Most people appoint a spouse, adult children, a trusted friend, or a professional.

How many? More than one is sensible. If you appoint only one and they die or lose capacity, the LPA fails.

Jointly or jointly and severally?

• Jointly — all attorneys must agree on every decision. Safer, but slower, and if one becomes unable to act the LPA may fail entirely.
• Jointly and severally — any attorney can act alone. Far more practical, and what most people choose.
• A combination — jointly for major decisions such as selling property, severally for everything else.

Replacement attorneys. Appoint them. It costs nothing and it is the difference between the LPA continuing to work and collapsing.

What to look for. Someone trustworthy with money, organised, likely to be around, and geographically able to help. Attorneys must act in your best interests, keep your money separate from theirs, keep records, and follow the Mental Capacity Act principles. It is a serious role.

Instructions and preferences

You can include:

Preferences — guidance your attorneys should consider but need not follow. Where you would like to live, dietary or religious observance, how you would like your affairs managed.

Instructions — binding requirements they must follow. Investing only in ethical funds, or consulting a named person before selling your home.

Instructions need care. Draft them too tightly and you can make the LPA unworkable, or cause the Office of the Public Guardian to reject it at registration. This is a common reason for DIY LPAs being returned, and it is worth getting right.

The process

1. Discussion. What you want, who you trust, and whether you need one or both types.

2. Drafting. We prepare the documents and any instructions or preferences.

3. Certificate provider. Someone independent must confirm you understand the LPA and are not under pressure. We can act as certificate provider.

4. Signing. In a strict order — you, then the certificate provider, then your attorneys. Signing out of order invalidates the document, and it is one of the most common DIY errors.

6. Completion. We send you the registered original and confirm what happens next.

Total: typically 10–16 weeks, most of which is OPG registration.

Register it now, not later

Some people delay registration to save the fee. This is a mistake. An unregistered LPA cannot be used, and if capacity is lost before registration, registration becomes considerably more difficult. Register when you make it.

Fees

The OPG registration fee is a disbursement paid to the Office of the Public Guardian. Fee remissions and exemptions are available for those on a low income or receiving certain benefits — ask us and we will check whether you qualify.

Frequently asked questions

When should I make an LPA? Now, while you certainly have capacity. It is not an old-age document — capacity can be lost suddenly at any age through accident, stroke or illness. Most people make LPAs alongside a will.

Can I make one if I have been diagnosed with dementia? Possibly, depending on stage. Capacity is decision-specific, and an early diagnosis does not necessarily prevent someone making a valid LPA. It does mean acting quickly, and we may recommend a medical opinion at the time of signing. Speak to us early rather than late.

Can I change or cancel it? Yes, at any time while you have capacity. You can revoke it by deed and notify the OPG. To change attorneys you generally need a new LPA.

Does my attorney get access to my money straight away? Only if you allow it. On the financial LPA you choose whether it can be used immediately or only once you lack capacity. The Health and Welfare LPA can never be used while you have capacity.

What if my attorneys misuse their position? The OPG investigates concerns and the Court of Protection can remove attorneys. Attorneys must keep your money separate and maintain records. Appointing more than one, or requiring joint decisions for major matters, adds protection.

I have an old Enduring Power of Attorney. Is it still valid? Yes. EPAs made before 1 October 2007 remain valid, but they cover property and finance only — there is no welfare equivalent. Many people with an EPA add a Health and Welfare LPA.

Do I need a solicitor? No, you can apply directly. But rejected applications are common — signing in the wrong order, unworkable instructions, missing signatures — and a rejection means starting again and paying the fee twice. Where the LPA includes anything beyond the standard, or where capacity might later be questioned, professional drafting is worth it.

Can you visit at home or in hospital? Yes. Please tell us when you make contact.

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