What is a Lasting Power of Attorney (LPA)?

A Lasting Power of Attorney (LPA) is a legal document that lets you, known as the donor, choose someone you trust, known as the attorney, to make decisions for you if you are ever unable to do so yourself.

This could be because of an illness, an accident, or a condition like dementia. The person you choose is called your attorney, and they can help you make decisions or make decisions on your behalf with things like managing your money, paying bills, or making decisions about your health and care, if you lose mental capacity.

Why is an LPA Important?

Creating an LPA ensures that if you become unable to make decisions due to illness, accident, or age-related conditions, your affairs will be handled by someone you trust. It:

• Ensures someone you trust will make decisions for you.
• Avoids court intervention (like applying for a deputyship, which is time-consuming, costly and emotionally challenging for loved ones).
• Gives you control over who makes decisions and what kind they can make.

Types of LPA

There are two types of LPA in the UK, each covering different areas of decision-making:

1. Health and Welfare LPA

This type of LPA allows the attorney to make decisions about:

1. • Daily care (e.g., washing, dressing, eating)
   • Medical treatment
   • Living arrangements e.g. moving into a care home
   • Life-sustaining treatment, if specifically authorised

This LPA can only be used once the donor has lost mental capacity and can no longer make these decisions.

2. Property and Financial Affairs LPA

This type of LPA gives the attorney authority to manage the donor’s financial matters. This covers decisions about:

1. • Managing bank accounts
   • Paying bills
   • Collecting benefits or pension
   • Selling the donor’s home

This LPA can be used as soon as it is registered, with the donor’s permission, or only when the donor loses mental capacity.

Both types of LPA must be registered with the Office of the Public Guardian (or relevant authority, depending on jurisdiction) before they can be used.

Mental Capacity

What Is Mental Capacity?

Mental capacity refers to an individual’s ability to make decisions for themselves. A person is considered to have mental capacity if they can:

• Understand the information needed to make a specific decision.
• Retain that information long enough to make a decision.
• Weigh up the information and available options to make a decision.
• Communicate their decision (verbally, in writing or through other means).

If someone loses mental capacity, they may not be able to:

• Understand what a decision means
• Remember important details
• Weigh up options
• Communicate their decision clearly

Mental capacity is decision-specific, meaning a person may have capacity to make some decisions but not others, and it may fluctuate over time.

How Is Mental Capacity Assessed?

Under the Mental Capacity Act 2005 (in England and Wales), the assessment is decision-specific and must follow these principles:

Five Key Principles:

1. Presume capacity unless it’s proven otherwise.
2. Don’t treat someone as unable to make a decision unless all practical help has been given.
3. Don’t assume lack of capacity just because a decision seems unwise.
4. If someone lacks capacity, decisions made on their behalf must be in their best interests.
5. The chosen decision should be the least restrictive of the person’s rights and freedoms.

Who Can Assess Mental Capacity?

It depends on the decision being made:

• For medical decisions: usually a doctor or consultant.
• For financial/legal matters: possibly a solicitor or social worker.
• For LPA purposes: the certificate provider acts as an informal assessor.

Key Safeguards

• The Office of the Public Guardian (OPG) oversees the registration and use of LPAs.
• Attorneys must act in the donor’s best interests.
• If someone is suspected of abusing their power, concerns can be reported to the OPG or the Court of Protection.

An LPA makes sure that someone you trust can step in and help you if you lose mental capacity.

Who Can Be an Attorney?

You can appoint anyone over 18, including:

• A spouse, partner, or family member
• A friend
• A professional (e.g. solicitor)

You can choose:

• One attorney
• Multiple attorneys (to act jointly or jointly and severally)
• Replacement attorneys in case the original can’t act

You can appoint as many attorneys as you like, but it’s common to appoint between 1 and 4 to keep things manageable and effective.

Key Points When Choosing Attorneys

They must:

• Be 18 or over.
• Have mental capacity when making the LPA.
• For financial LPAs, attorneys must not be bankrupt or subject to a debt relief order.

Questions to Ask Yourself When Choosing an Attorney

• Do I trust them completely?
• Are they good with money or decision-making?
• Will they respect my wishes and values?
• Can they manage the responsibility?

Pros and Cons to Consider:

What to Consider When Choosing an Attorney

1. Trustworthiness

• Choose someone you trust completely to act in your best interests.
• Ask yourself: Would I trust them to make big decisions with my money, health, or life if I couldn’t?

2. Capability

• Are they organised, sensible, and good with paperwork or finances (if it’s a financial LPA)?
• For a Health and Welfare LPA, are they compassionate and understand your values and wishes?

3. Willingness

• Talk to them first. Make sure they understand the role and are willing to take it on — it can be a big responsibility.

4. Location

• It’s often easier if your attorney lives nearby, especially for health or daily care decisions, though it’s not a requirement.

5. Age and Health

• Choose someone likely to be around and capable when you might need them.
• It’s okay to appoint someone younger or a mix of ages.

Key Questions to Ask a Potential Attorney

When you approach someone to be your attorney, it’s good to have a candid, respectful conversation. Here are some questions you can ask:

General Questions

• “Would you feel comfortable making decisions for me if I couldn’t?”
• “Do you feel confident managing paperwork, finances, or medical choices if needed?”
• “Would you be okay making difficult decisions if I couldn’t express my wishes?”

 Practical Questions

• “Do you think you’d be available long-term if something happened?”
• “Would you be able to act quickly if needed — like for urgent medical or financial matters?”
• “Would you be comfortable working with other attorneys if I appoint more than one?”

 Values & Boundaries

• “Do you feel like you understand my values around health care, independence, and dignity?”
• “If you didn’t agree with what you thought I’d want, could you still carry it out?”
• “Are there any concerns you have about taking on this role?”

Who Should You Avoid Choosing as an Attorney?

• Anyone who pressures you, even slightly.
• People with financial issues (for Property & Finance).
• Anyone you’re not 100% sure would act in your best interests at all times.
• People with conflicting interests (e.g. someone you owe money to).

Choosing More Than One Attorney

If you’re appointing more than one attorney, then ask yourself:

• Do they get along?
• Can they work together if needed?
• Will they act fairly and not let personal differences affect your care or finances?
• You can also balance their strengths e.g. one person good with money, another better at making healthcare decisions.

How Can They Act?

You can choose how your attorneys make decisions:

1. Jointly (all must agree on every decision)

• Safer but can cause delays or problems if one attorney is unavailable or dies.

2. Jointly and Severally (can act together or separately)

• More flexible and practical.
• If one attorney can’t act anymore, the others can continue.

3. Jointly for some decisions, severally for others

• For example, attorneys act jointly when selling property, but severally for day-to-day finances.

Do You Need to Pay Your Attorney?

• Lay attorneys: These are mostly family and friends who are usually unpaid, but you may wish to reimburse them expenses like travel costs, postage or admin expenses, phone calls or printing etc.
• Professional attorneys: These can be solicitors, accountants, deputies etc. They will charge a fee for their time; this needs to be clearly written into the LPA. You can also choose to pay a friend or family member if you want to, make sure that this is clearly written into the LPA.
  •  If You Decide to Pay an Attorney: Agree on a clear rate or structure up front. The payments should be reasonable and reflect the work they actually do.
  • Legal Responsibility: Even if unpaid, an attorney:
    • Must always act in your best interests.
    • Can be investigated or removed if they misuse your money or act irresponsibly

You Can Also Appoint Replacement Attorneys

It is always good to have a backup and have replacement attorneys who can step in. These need to be included in your LPA as you cannot add them to a registered LPA at a later stage

• The replacement attorneys step in if one or more original attorneys can no longer act (e.g. death, illness, or resignation).
• They help to ensure continuity without needing a new LPA.

Removing or Replacing One Attorney

If you want to replace an attorney because:

• They no longer want to act.
• They have lost capacity.
• They have died.
• You have lost trust in them.
• They have become bankrupt (Financial LPA only).

You Can:

• • Remove an attorney if you still have mental capacity.
  • Appoint a replacement attorney if your LPA already included a replacement attorney in it when it was registered with the OPG (you cannot add new ones later — you would need to make a new LPA for that).

Important:

You cannot amend the LPA to swap in a new attorney after it’s been registered. You would need to:

• Revoke the existing LPA
• Create a new LPA with your new choice of attorney(s).
• Register a new LPA with the OPG.
• Notify all attorneys and anyone affected.
• Destroy copies of the old LPA after revoking it (but keep proof of revocation).
• Make sure your new LPA is registered before you need it — as it takes several weeks.

What Happens If an Attorney Dies?

If an attorney dies, you must

• Notify the Office of the Public Guardian (OPG).
• Send the OPG:
  • A copy of the death certificate
  • The original LPA (so it can be updated or marked)
  • Your contact details

What Happens After The Death Of An Attorney

This depends on how you appointed your attorneys:

• Jointly: This means they must make all the decisions together. If one attorney dies then the LPA ends as it becomes invalid, even if others are still alive. You will need to create a new LPA.
• Jointly and severally: The remaining attorneys can continue acting for you as the LPA is still valid. The OPG will just need to update their records.

• Replacement Attorney: If the deceased attorney was a sole attorney, the replacement attorney can step in if you named one. If you had multiple attorneys and one dies, then the replacement attorney only steps in if all original attorneys can no longer act (unless otherwise specified in the LPA).
• No Replacement Attorney: If no replacement attorneys are named and no attorneys remain, then the LPA becomes invalid and ends. All decisions will need to go through the Court of Protection, unless you create a new LPA while you still have capacity. 

What Happens When the Donor Dies?

• The LPA ends automatically
• The attorneys lose all the power given to them
• The estate is now managed by the executor named in the will of the said donor
• The OPG needs to be notified and be sent a copy of the said donor’s death certificate

Changes To Be Reported To The OPG

You must inform the OPG if the following occurs:

• Name change of the donor or the attorneys
• Address change of the donor or attorneys
• Death of an attorney or donor
• An attorney losing mental capacity
• An attorney going bankrupt (financial LPA)
• An attorney chooses to resign
• Changes to replacement attorneys: changes in their name, address, mental capacity or status
• If the LPA is revoked

What To Do If You Change Your Mind And No Longer Want The LPA

If you no longer wish to continue with the LPA, you have the option of revoking it. This is done via a legal document called the Deed of Revocation which must be filed with the OPG.

To revoke the entire LPA, you will need to first satisfy the following requirements:

• You must still have mental capacity to make this decision.
• You don’t need anyone’s permission (not even the attorneys’), but you must notify them and anyone involved know.
• You will need to send a deed of revocation to the OPG together with the original LPA.

Ways a Lasting Power of Attorney (LPA) Can End

A Lasting Power of Attorney (LPA) is a powerful legal document that allows someone you trust to make decisions on your behalf. However, there are certain events and situations that can bring an LPA to an end.

1. Death of the Donor

• • The LPA ends immediately upon the death of the person who made it (the donor).
  • Attorneys lose all legal authority to act.
  • The original LPA and a copy of the death certificate must be sent to the Office of the Public Guardian (OPG).

2. Revocation by the Donor

• • The donor can cancel (revoke) the LPA at any time, as long as they still have mental capacity.
  • A formal Deed of Revocation must be sent to the OPG with the original LPA.

3. Loss of Mental Capacity Before Registration

• • If the donor loses mental capacity before the LPA is registered, the LPA is invalid and cannot be used.
  • The attorneys will need to apply to the Court of Protection to act on the donor’s behalf.

4. Cancellation by the Court of Protection

• • The Court can cancel an LPA if:
    • An attorney is found to be acting improperly or abusing their power
    • There is evidence the LPA was made under pressure or fraud.
    • The donor regains capacity and challenges the LPA.

5. Death of an Attorney

• • If the attorneys were appointed jointly, the LPA ends upon the death of any one of them.
  • If the attorneys were appointed jointly and severally, the remaining attorneys can continue.
  • If no replacement attorneys are named and no attorneys remain, then the LPA ends.

6. Attorney Is Unable or Unwilling to Act

• • The LPA ends if there are no attorneys left and no replacements named. Reasons for this could be:
    • An attorney resigns.
    • An attorney loses capacity.
    • An attorney becomes bankrupt (for property & financial affairs LPA).
    • There are no attorneys or replacements left who can act.

7. LPA Declared Invalid

• • The LPA can be declared invalid if:
    • It was not signed or witnessed correctly.
    • It was created under duress or fraud.
    • It is successfully challenged in court.

Important: If your LPA ends and you still have mental capacity, you can always make and register a new one. It is wise to review your LPA regularly and keep the Office of the Public Guardian informed of any major changes.

How We Can Help

We can help you with creating and registering the LPA, updating or cancelling an LPA?

Contact us to find out more.