Lasting Power of Attorney: Why Families Should Not Delay
A Lasting Power of Attorney lets someone you trust make decisions for you if you become unable to make them yourself. It is the single most useful piece of paperwork a family can put in place, and the one most often left too late. Once capacity is lost it cannot be created, and the alternative is slower, costlier and far more intrusive.
There are two separate Lasting Powers of Attorney in England and Wales. One covers property and financial affairs, the other covers health and welfare. They are registered separately and most people should have both.
The property and financial affairs LPA can be used as soon as it is registered, with the donor's permission, which is helpful when someone is physically frail but mentally sharp. The health and welfare LPA can only be used once the donor lacks capacity to make the particular decision themselves.
Property and financial affairs: banking, bills, pensions, property, care fees
Health and welfare: medical treatment, care arrangements, where you live
Both must be registered with the Office of the Public Guardian
Registration takes a number of weeks, so allow time
Both can be made online or on paper, with a certificate provider
Choosing attorneys well
Choose people who are organised, trustworthy and likely to outlive you, and think carefully about whether they should act jointly, meaning all decisions together, or jointly and severally, meaning any one of them can act alone.
Jointly and severally is usually more practical, because it avoids paralysis if one attorney is abroad or unwell. Appoint at least one replacement attorney. Families frequently appoint a single attorney and then find themselves stuck when that person becomes ill.
What attorneys can and cannot do
Attorneys must act in the donor's best interests, follow the Mental Capacity Act principles, keep the donor's money separate from their own, and keep records. They must involve the donor in decisions as far as possible, because capacity is decision specific and often fluctuates.
They cannot make a will, cannot make gifts beyond limited customary amounts without court approval, and cannot override a decision the donor still has capacity to make. Health and welfare attorneys can only refuse life sustaining treatment if the LPA expressly grants that power.
Act in the donor's best interests at all times
Keep the donor's finances entirely separate and keep records
Involve the donor in every decision they can take part in
No large gifts without Court of Protection approval
Life sustaining treatment decisions only if expressly authorised
What happens if you leave it too late
If capacity is lost before an LPA is registered, the family must apply to the Court of Protection for a deputyship order. That takes many months, costs considerably more, and brings ongoing supervision fees and annual reporting.
In the meantime, banks will freeze accounts, care fees may go unpaid and property cannot be dealt with. Care providers, councils and the NHS all move more slowly when nobody has authority to sign. It is a genuinely difficult situation, and it is entirely avoidable.
How it helps when care starts
In day to day terms, a registered LPA means someone can pay care invoices, speak to the bank, deal with utilities, complete a benefits claim and agree a care plan without an argument about authority. It removes friction at exactly the point when a family has no spare energy.
Bring copies to the free home assessment. We record attorney details in the care plan so that our care managers know who to call about which type of decision, which matters most in the middle of the night.
Related documents worth having
Consider an advance statement recording preferences about care, food, routine and where you would like to be cared for. It is not legally binding but it carries real weight in best interests decisions.
An advance decision to refuse treatment, sometimes called a living will, is legally binding when valid and applicable. Keep a note of where the will is held, and make sure at least two people know where all the documents are.
Frequently asked questions
Do I need a solicitor to make an LPA?
No. You can make one yourself online or on paper, though a solicitor is worth it where family circumstances or finances are complicated.
How long does registration take?
Several weeks from submission, and it cannot be rushed, which is why it should be done well before it is needed.
Can I make an LPA if I have early dementia?
Yes, provided you have capacity to understand the document at the time you make it. This is a strong reason to act quickly after a diagnosis.
What if my relative has already lost capacity?
An LPA can no longer be made. The family would need to apply to the Court of Protection for a deputyship, which takes months and costs more.
Can an attorney arrange home care?
A health and welfare attorney can make care decisions once the donor lacks capacity for them, and a finance attorney can pay for the care.
Does an LPA cover a joint bank account?
Banks handle joint accounts differently, so notify the bank of the registered LPA and ask what it needs in writing.
