Lasting Power of Attorney

Creating a Lasting Power of Attorney can provide peace of mind for both the donor and their loved ones, as it ensures that someone they trust is able to make important decisions on their behalf when they are no longer able to do so themselves, due to illness, disability, old age or an accident.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘Attorneys’) to help you make decisions or to make decisions on your behalf.

This gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions at the time they need to be made (you ‘lack mental capacity’).

A Lasting Power of Attorney is a completely separate legal document to your Will – although many people put them in place at the same time as getting their Will written as part of wanting to plan for the future.

How many types of Lasting Power of Attorney are there?

There are two types of Lasting Power of Attorney available:

1. A Property and Financial Affairs Lasting Power of Attorney (LPA) which allows you to name Attorneys to deal with all your property and financial assets in England and Wales. The Lasting Power of Attorney document can be restricted so it can only be used when you have lost mental capacity, or it can be used more widely, such as if you suffer from illness, have mobility issues, or if you spend time outside the UK
2. A Health and Welfare Lasting Power of Attorney (LPA) which allows you to name Attorneys to make decisions about your healthcare, treatments and living arrangements if you lose the ability to make those decisions yourself. Unlike the Property and Financial Affairs LPA, this document will only ever become effective if you lack the mental capacity to make decisions for yourself.

When is the right time to put in place Lasting Powers of Attorney? 

It is important to create an LPA before you become incapacitated, as you can’t create an LPA once you have lost mental capacity. You must have the mental capacity to understand the nature and scope of the document you are creating. If you miss the opportunity to put LPAs in place, then the only way to obtain decision making authority for a person who has lost capacity is by making an application to the Court of Protection.

While there is no set age or time when everyone should create an LPA, it is recommended that individuals consider creating an LPA as part of overall estate planning. This could include creating an LPA in conjunction with a Will or other legal documents that outline your wishes for your property and finances. Often clients will consider themselves too young to need a Lasting Powers of Attorney, choosing instead to put them in place when they are much older and when perhaps their children become adults. This is understandable, as statistically, you are less likely to lose mental capacity in your younger years. That said, when you have a young family the consequences of losing capacity without a Lasting Power of Attorney in place are far greater as generally speaking, more people are reliant on the efficient management of your finances during that time. It is worth considering the likely impact on your loved ones of a time where no-one has access to or decision making powers over your finances. It is common for Court of Protection applications to take several months.

Creating an LPA when you are still able to make decisions for yourself ensures that you have the opportunity to carefully consider who you would like to appoint as your attorney(s) and make sure that they are aware of your wishes and preferences.

An LPA can only take effect after it has been registered with the Office of the Public Guardian. 

It is also important to review your LPA regularly to ensure that it remains up to date and reflects your current wishes and circumstances. This may be particularly important if your personal or financial circumstances change, or if there are changes to the laws or regulations governing LPAs.

Who can make a Lasting Power of Attorney? 

An LPA can be created by anyone over 18 years old with the mental capacity to understand the nature and scope of the document they’re creating. 

Our Wealth Protection team works closely with our Court of Protection team, all of whom have significant experience in matters concerning Lasting Powers of Attorney. To enquire about making a Lasting Power of Attorney, please contact the Wealth Protection team on 03333 058375 or email WealthProtection@psg-law.co.uk.

Read more Lasting Power of Attorney FAQs on our Wealth Protection FAQs page.