What is a lasting power of attorney and which type do I need?
Two separate documents with different rules about when they can be used. Both have to be made while capacity is intact, which is the whole difficulty.
- Difficulty
- intermediate
- Time
- 45 min
- Read
- 4 min
Short answer
There are two lasting powers of attorney in England and Wales: property and financial affairs, and health and welfare. The financial one can be used with your permission while you still have capacity; the health one can only be used once you have lost it. Both must be registered with the Office of the Public Guardian before use, and both must be made while you still have capacity to make them.
The defining feature of a lasting power of attorney is that it cannot be made when it is needed. Once capacity is gone, the only route is a deputyship application to the Court of Protection, which is slower, considerably more expensive, involves ongoing supervision and gives the family far less control. That asymmetry is the entire argument for doing it early.
Step by step
- Understand the two types and make both if you make either.Property and financial affairs covers bank accounts, bills, benefits, investments and selling a home. Health and welfare covers medical treatment, care arrangements, and where you live. They are separate documents with separate fees, and the second is the one most often skipped and most often needed.
- Note the different rules on when each can be used.A registered financial LPA can be used with the donor's consent while they still have capacity, unless the donor restricts it. A health and welfare LPA can only ever be used once the donor lacks capacity to make the particular decision.
- Choose attorneys carefully.They must be eighteen or over and not bankrupt for a financial LPA. Consider whether they are good with money, whether they live close enough to be practical, and whether they will stand up to a family member who disagrees. You can appoint more than one.
- Decide jointly or jointly and severally.Jointly means every decision needs all attorneys, which is safe but paralysing if one becomes unavailable — and the LPA can fail entirely if one attorney can no longer act. Jointly and severally lets any of them act alone, which is far more practical. A mixed arrangement is possible for specified decisions.
- Appoint replacement attorneys.If your only attorney dies, loses capacity or steps down, an LPA without replacements ends. Naming replacements costs nothing and prevents the document becoming useless.
- Decide on life-sustaining treatment.The health and welfare form asks explicitly whether attorneys may give or refuse consent to life-sustaining treatment. It is a deliberate, separate choice and the form does not proceed without an answer.
- Get the certificate provider right.An independent person must certify that you understand the LPA and are not under pressure. It can be someone who has known you personally for two years, or a professional such as a GP or solicitor. It cannot be an attorney, a family member of an attorney, or certain other connected people.
- Register it with the Office of the Public Guardian.An unregistered LPA cannot be used at all. Registration takes a number of weeks and there is a fee per document, with remissions and exemptions for low incomes and certain benefits. Register it as soon as it is made rather than waiting until it is needed.
- Give copies to the institutions that will need them.Banks each have their own registration process for an LPA and it is far easier to do while the donor can help. Certified copies are accepted; make several.
- Understand what attorneys may and may not do.Attorneys must act in the donor's best interests under the Mental Capacity Act, keep the donor's money separate from their own, keep records, and follow any instructions in the LPA. They cannot make a will for the donor, and gifts are tightly restricted — anything beyond customary seasonal gifts of reasonable size needs Court of Protection approval.
Common mistakes
- Appointing attorneys jointly by default — It is the more restrictive option and the LPA can fail entirely if one attorney becomes unable to act. Jointly and severally is usually the practical choice.
- Making it and not registering it — An unregistered LPA is unusable. Registration takes weeks, which is exactly the time you will not have when it is needed.
- Making only the financial one — Health and welfare decisions are where families most often find themselves without authority, and there is no equivalent workaround.
- Assuming next of kin have automatic authority — They do not. "Next of kin" has no legal standing for making decisions or accessing accounts. Without an LPA the route is a Court of Protection deputyship.
Questions people ask
What happens if someone loses capacity without an LPA?
The family must apply to the Court of Protection to be appointed as deputy. It is slower, considerably more expensive, involves an annual supervision fee and a security bond, and the court decides what powers to grant.
Can an attorney use the LPA while I still have capacity?
A property and financial affairs LPA can be used with your consent once registered, unless you restrict it to capacity loss. A health and welfare LPA never can — it only operates once you lack capacity for that decision.
Is it the same in Scotland?
No. Scotland has continuing power of attorney for financial matters and welfare power of attorney, registered with the Office of the Public Guardian (Scotland). Northern Ireland uses enduring powers of attorney with different rules again.