LPA FAQs

An LPA (Lasting Power of Attorney) is a legal document allowing you (The Donor) to appoint others (Attorneys) to help you with making decisions.

There are two types of LPA: A Health and Welfare LPA; A Property and Financial affairs LPA.

A Health and Welfare LPA appoints one attorney or more to help make medical and care decisions. This could be which treatments to consent to, or which assisted living facility to live in. This LPA only comes into effect after it is registered with the Office of the Public Guardian (OPG) and the Donor has lost mental capacity

A Property and Financial Affairs LPA appoints one or more attorney to help with financial matters and help manage your finances. This LPA only comes into effect once it is registered with the OPG, though the donor has the choice in drafting whether they wish to have the LPA active as soon as it is registered, or only if the donor has lost capacity. 

A lasting power of attorney is an entirely distinct legal document to your will although many people choose to organise them at the same time and store them in the same place as part of their planning for the future.

A Lasting Power of Attorney is a vital legal document that everyone should have in place in case the worst should happen, and you can’t make important decisions for yourself. If an LPA is not in place by this time, it can be a long and expensive court process through “Deputyship” to get the help you need, without the guarantee that the person that you wish is nominated. A well written LPA guarantees that your affairs are in order so that should the worst happen, you are prepared and protected.

There are two types of LPA: A health and Welfare LPA and a Property and Financial Affairs LPA. 

A Health and Welfare LPA appoints one attorney or more to help make medical and care decisions. This could be which treatments to consent to, or which assisted living facility to live in. This LPA only comes into effect after it is registered with the Office of the Public Guardian (OPG) and the Donor has lost mental capacity

A Property and Financial Affairs LPA appoints one or more attorney to help with financial matters and help manage your finances. This LPA only comes into effect once it is registered with the OPG, though the donor has the choice in drafting whether they wish to have the LPA active as soon as it is registered, or only if the donor has lost capacity. 

An LPA can only be registered if the Donor (the subject of the LPA) has the mental capacity to do so. If you wait until it is too late, the LPA will not be able to be registered by the Office of the Public Guardian. In this case, a Deputyship order may have to be requested from the courts, a much longer and often considerably more expensive process.  

Another reason is that the waiting times for registration are quite long, with some reporting up to 20 weeks wait for confirmation that their LPA has been registered. Its best to get your affairs in order in good time to ensure that you can rely on the help of your chosen Attorneys when you need it.

A Donor is the subject of a Lasting Power of Attorney. If you are considering an LPA for yourself, you are the Donor. 

A Donor must be over 18, and must have the requisite mental capacity to make decisions for themselves. An LPA cannot be made when a Donor lacks capacity.

An Attorney is a person that the donor appoints via an LPA to help make decisions for them, and act as their advocate in the respective areas that the LPA covers (Health and Welfare/Property and Finance). 

There is no limit to the number of attorneys a Donor may appoint, though 2 will normally suffice. It is sensible to not overcomplicate the LPA instructions in order to avoid ambiguity when the Donor needs to use it. 

The Donor’s choice of attorney is an important one as it can be an onerous duty. Choosing the person (or people) that will step in to make decisions on one’s behalf requires a lot of thought, and of course a full and frank discussion with the Donor’s chosen Attorney(s).

In short, yes. An LPA is something that is invaluable to have in place, with the hope that you will never need use of it. It is no good to wait to make an LPA until you need it, because by this stage it is likely too late: Donors may not make an LPA if they lack capacity. Unless you have a crystal ball and can accurately and precisely predict the future, putting an LPA in place sooner rather than later is essential, and could save you and your family considerable amounts of time and money in the future. 

There are several disconcerting, and completely false popular beliefs surrounding decision making and LPAs, such as “I won’t ever need an LPA”, or “My next of kin will get the final say if I lack capacity”. The reality is considerably more sobering: nobody knows what the future holds, and your next of kin won’t be assumed to have the legal right to speak for you, unless an LPA is in place. Everybody should have an LPA in place, regardless of age or current mental health status.  Although nobody likes to think about losing the ability to manage their own affairs, it can happen. Dementia, brain injuries and mental health issues are only a few of the conditions that can strip an otherwise healthy person of their capacity, temporarily or permanently. Worryingly, it is estimated that less than 1% of the adult UK population has an LPA. Having an LPA in place ensures that you get the final say on who helps you make decisions, and how they help you if you ever need it.

If capacity is lost without an LPA in place, then the only alternative is an application for a Deputyship order which is submitted to the Court of Protection. A deputy is similar to an attorney though deputyship has far more input from the court, and thus the language of the process also changes. The “Donor” of the LPA process is replaced by the “Patient” in deputyship. Deputyship is a more paternalist framework, with protection of the patient being the paramount consideration, rather than patient autonomy. The court appointed deputies may not necessarily reflect your intentions, whereas an LPA enables you to pick exactly who you want to act as an attorney and give binding and non-binding guidance.  

Deputyship is also considerably more costly in both money and time compared to an LPA. Even without legal fees, the cost of application alone can be more than £370.00 (this amount increases at least twofold if a court hearing is needed) . This compares to a relatively modest £82.00 for each LPA application. It is highly advisable to prevent the need for deputyship proceedings by preparing an LPA before its too late. Although the OPG struggles to hit its target wait times with LPAs, they are almost universally far shorter than the process for deputyship.

In drafting an LPA, the Donor is invited to list their preferences and instructions for their Attorneys (Section 7). Simply speaking, instructions are binding, and preferences are not. Although it may seem intuitive to the Donor to then make all their preferences into instructions so as to bind their Attorneys, there are well advised reasons to keep instructions as infrequent and simple as possible. 

LPAs enables Donors to specify any preferences they would like their Attorneys to be aware of when they are helping to make decisions.  Preferences are non-binding expressions of wishes that Attorneys are expected to keep in mind when making decisions on the Donor’s behalf.  An example of a preference might be that the Donor wishes each of their grandchildren receives £50 on their respective birthdays.

LPAs also allows to make known any instructions a Donor may have for their Attorneys. These are legally binding and Attorneys must follow them. As part of the instructions found in section 7 of the LPA form, Donors can grant Attorneys access to digital assets, online bank accounts and the Donor’s Will.  Donors may also use section 7 to make known any charity donation wishes and can also give any Discretionary Investment Management instructions. Instructions can also be used to restrict Attorneys to managing certain property or businesses. Learn more about Business LPAs[Link- LPAs for business]. 

It is pertinent to note here that practitioners typically advise against instructions unless it pertains to a decision of high importance such that the Donor does not feel confident that it will be made correctly unless a specific instruction is given. This is due to the fact that instructions that are suitably unclear, contradictory, or illegal may be removed, or risk having the LPA registration fail entirely. [fail entirely link to “when should I register my LPA)

It is generally more accepted that Donor guidance is communicated to the Attorneys in a separate document, a letter of wishes, which informs Attorneys of how the Donor would like decisions to be made. The disadvantage is that these wishes are not legally binding, but the advantage is that one can update these letters at any time. It is extremely difficult to amend an LPA, and usually requires the creation of a new one (which is impossible once the donor has lost capacity).

LPAs (both financial and health) need to be registered before they can be used. There is no requirement for the Donor to register the LPA straight away, though if the Donor is sure that the document reflects their wishes, it is advisable to register as soon as possible. 

Registering an LPA as soon as possible is important because the Office of the Public Guardian can experience significant delays in the registration process, and the LPA cannot be used unless it has been registered. This could mean months of the Donor’s Attorneys not being legally able to act. 

It is also possible that the LPA form contains mistakes that require a fresh LPA application. The donor is incapable of making such an application if they lose capacity. With this in mind, it is advisable to register the LPA as soon as possible after it has been made. 

If a Donor loses capacity after they have signed the LPA, but before it has been registered, the LPA may be registered by the Attorneys, though this is reliant on no mistakes being made in the completion of the LPA form, and is not best practice when considering whether or not to delay the registration of an LPA.

For Health and Welfare LPAs :

• What do you want to happen if you need life sustaining treatment?
• Should somebody take care of you at home, or is residential care more suitable? 

For Financial and Property LPAs

• Who do you trust to handle your financial affairs on your behalf?
• Should your House be sold or rented?

You can only make an LPA when you have mental capacity. If you lose capacity you cannot make one, and one may not be made on your behalf.

The choice of who to appoint as an Attorney is an important one. Popular choices include spouses, children and trusted family and friends, but the choice is totally up to the Donor. Thorough consideration should be given to this choice, as the role entails making important, and sometimes difficult and complex decisions about healthcare or finances. It is therefore pertinent to choose trustworthy people that know the Donor well. It is also important to consider (if choosing more than one attorney) whether they should work jointly, or independently.

Only appointing one Attorney might not be advisable, as if this attorney is unable to act, then the LPA will fail. If this happens, then a new LPA will have to be made with a new Attorney. This is needlessly wasteful in terms of time and money. The worst case scenario is also worth considering: If the Attorney is unable to act, but only after the Donor has lost capacity, then a new LPA will not be able to be made, and a Deputyship order may have to be made by the court.

It is good practice to name replacement Attorneys in an LPA. These replacements will act if the original choice of Attorney cannot either temporarily or permanently.

It is of vital importance that you make the correct decisions when choosing your attorney(s), deciding how they should act, and deciding which powers to give them.

If you do not select the appropriate attorneys or fail to authorise them to act in the correct way, your LPA may rendered unusable at a later date. In this case, it will be necessary for your family to apply to the Court of Protection to have a deputy appointed to deal with everyday matters, which is considerably burdensome on the applicant(s). 

My Fortress can assist you in making the right choices for your LPA and facilitate that it is completed and registered correctly to ensure that it is valid and secure if your family needs to use it. We also offer a free full checking service for the document for added peace of mind.