Most people put off making a lasting power of attorney because they assume it is something for later life. In reality, loss of capacity can follow an accident or sudden illness at any age. Without an LPA in place, the people closest to you may have no authority to manage your money, deal with your home or speak for you on medical treatment, at exactly the time they most need to.

What a lasting power of attorney does

An LPA is a legal document that lets you appoint one or more people, known as attorneys, to make decisions on your behalf if you cannot make them yourself. You choose who they are, what decisions they can make and whether there are any limits on their authority. The document must be registered with the Office of the Public Guardian before it can be used.

The two types of LPA

There are two separate types, and most people benefit from having both:

  • A property and financial affairs LPA covers managing bank accounts, paying bills, collecting income and pensions, and buying or selling property. With your consent, it can be used while you still have capacity, which can be helpful if you are travelling or simply want practical support.
  • A health and welfare LPA covers decisions about medical treatment, care arrangements and where you live. It can only be used once you lack capacity to make the decision yourself, and you can choose whether your attorneys may make decisions about life-sustaining treatment.

Choosing your attorneys

Attorneys should be people you trust completely and who are willing and able to take on the role. You can appoint more than one and decide whether they must act together on every decision, or whether each can act alone. Requiring joint decisions provides a check but can cause problems if one attorney becomes unavailable. Appointing replacement attorneys is sensible so the LPA does not fail if an original attorney cannot act.

Instructions and preferences

You can include binding instructions that your attorneys must follow, and non-binding preferences that guide them. Instructions need careful drafting, because an instruction that is unworkable or inconsistent with the law may be removed by the Office of the Public Guardian or cause delay in registration. Preferences are a useful way to record your wishes, for example about investment approach or the kind of care you would want.

Making and registering an LPA

The LPA must be signed in the correct order by you, a certificate provider who confirms you understand what you are doing and are not under pressure, and your attorneys. It is then registered with the Office of the Public Guardian. Registration can take several weeks, which is another reason not to wait until the document is urgently needed. The Office of the Public Guardian has been modernising the process, including a move towards online applications, and we can guide you through whichever route applies.

What happens without an LPA?

If you lose capacity without an LPA, your family will usually need to apply to the Court of Protection for a deputy to be appointed. The process is slower, more expensive and more intrusive than making an LPA, and the court, not you, decides who is appointed. Deputies must also submit annual reports and may need to pay for a security bond. A joint bank account or a spouse's position does not give automatic authority to deal with assets held in your sole name.

A note for business owners

If you own a business or are a company director, your personal LPA may not be enough to keep the business running. A separate LPA focused on business affairs, alongside a review of the company's articles and any shareholders' agreement, can prevent the business being left without anyone able to make decisions.

What to do now

We recommend that you:

  • Put both types of LPA in place, whatever your age.
  • Think carefully about who your attorneys and replacements should be, and speak to them first.
  • Consider a separate business LPA if you own or run a company.
  • Review your LPAs alongside your will after major life events such as marriage, divorce or a move abroad.
  • Tell your attorneys where the registered documents are kept.

Key takeaways

A lasting power of attorney is one of the simplest and most effective ways to protect yourself and your family. It keeps control in your hands, avoids the cost and delay of court applications, and gives the people you trust clear authority to act.

If you would like to discuss making or reviewing a lasting power of attorney, please contact Private Client partner Eleanor Whitfield.