A lasting power of attorney lets you choose who makes decisions for you if you ever cannot make them yourself. It is the most useful document most people never get round to, and it only works if you set it up while you still have capacity to do so.
That last point is the whole thing. An LPA is not something you arrange when it becomes necessary. By then it is too late.
The two types
In England and Wales there are two separate LPAs. They are made separately, registered separately and each costs its own fee. Most people should have both.
Property and financial affairs. Covers money and property: operating bank accounts, paying bills, dealing with pensions and benefits, selling a house. This one can be used while you still have capacity if you allow it, which is useful for people who want help before they need it.
Health and welfare. Covers medical treatment, where you live, day-to-day care and, if you specifically grant it, decisions about life-sustaining treatment. This one can only be used once you have lost capacity to make the decision yourself.
Families often do the financial one and skip the health one, on the reasonable-sounding basis that doctors will consult them anyway. Doctors will consult you, but consultation is not authority, and the gap becomes obvious in exactly the situations you would least want to be arguing about it.
What it costs
£92 per LPA to register with the Office of the Public Guardian in England and Wales, so £184 for both. Reductions or exemptions are available on a low income or on certain benefits.
You can complete the forms yourself through GOV.UK. A solicitor will typically charge a few hundred pounds per document and is worth it where there is any complexity: a business, property abroad, a blended family or any prospect of disagreement.
Signed is not the same as registered
This is the most common and most costly mistake in the whole subject.
An LPA cannot be used until it has been registered with the Office of the Public Guardian. Registration takes several weeks, and a document sitting signed but unregistered in a drawer does nothing at all at the moment it is needed.
Register it as soon as it is made. There is no advantage in waiting and there is a very real disadvantage.
Choosing attorneys
Pick people who are trustworthy, organised and likely to outlive you, which sounds obvious and is regularly ignored.
You can appoint more than one, and how you appoint them matters. Jointly means they must all agree on everything, which is a safeguard and a bottleneck, and it means the whole LPA fails if one of them can no longer act. Jointly and severally means any of them can act alone, which is far more practical for most families. There is also a middle option where some decisions are joint and the rest are several.
Name a replacement attorney. It costs nothing and it saves the document from failing if your first choice dies or becomes unwell.
What happens without one
If someone loses capacity with no LPA in place, the family has to apply to the Court of Protection for a deputyship order. It takes months, it costs considerably more than an LPA and there are ongoing supervision fees. The court decides who is appointed, which may not be who the person would have chosen.
In the meantime, nobody can access accounts, deal with the property or make many of the decisions that need making. It is a genuinely difficult period and it is entirely avoidable for £184 and an afternoon.
It matters particularly if care funding is in prospect. Deferred payment agreements, property decisions and financial assessments all need someone with legal authority to act, and those things do not wait for a court.
Scotland and Northern Ireland
Scotland has continuing powers of attorney for financial matters and welfare powers of attorney for health and care, registered with the Office of the Public Guardian (Scotland). The framework sits under the Adults with Incapacity (Scotland) Act 2000 and the fees and forms differ.
Northern Ireland still uses enduring powers of attorney, which cover property and financial affairs only. There is no direct equivalent of the health and welfare LPA, and the arrangements are administered through the Office of Care and Protection.
If you have moved between nations, check that what you hold is valid where you now live.
Once it is done
Tell your attorneys they are attorneys. People genuinely find out by accident. Tell them where the registered document is, because banks and providers will want to see it and a copy in an unknown location is no better than no copy.
Review it every few years. Attorneys move, fall out or become unwell, and an LPA naming someone who can no longer act is a problem discovered at the worst possible time.
Where FamilySafe fits
FamilySafe holds the registered LPA, records who the attorneys are and where the original sits, and makes that visible to the people who would need it. So the document that took an afternoon to arrange is actually findable in the week it matters.
Sources
- GOV.UK: make, register or end a lasting power of attorney
- Office of the Public Guardian, and Office of the Public Guardian (Scotland)
- nidirect: enduring power of attorney
This is general information, not legal advice. If you are under pressure to sign something you are unsure about, speak to a solicitor or contact Age UK before you do.
