The Two Types of Lasting Power of Attorney
Who Can Be an Attorney?
Your attorney must be an adult (18 or over) who has mental capacity themselves. A person who is subject to a debt relief order or who is bankrupt cannot act as your attorney for property and financial affairs. Your solicitor advises on:
- Who to appoint — an attorney should be someone you trust completely. Many people appoint a spouse, adult child, or close friend. You can appoint more than one attorney and specify whether they act jointly (all must agree) or jointly and severally (each can act alone).
- Replacement attorneys — you can name a replacement attorney who steps in if the original attorney cannot act (through death, bankruptcy, or loss of capacity).
- Restrictions and guidance — you can add restrictions (things the attorney cannot do) and guidance (preferences and wishes you would like the attorney to follow). A solicitor drafts these carefully to achieve your intended effect.
- Certificate provider — the LPA must include a certificate provider who confirms that you understand the LPA and are not being pressured. Your solicitor can act as certificate provider.
Registering the LPA with the Office of the Public Guardian
An LPA has no legal effect until it is registered with the Office of the Public Guardian (OPG). Registration currently takes 20 working days (plus notification periods). Key points:
- The LPA must be registered before it can be used — even if the donor still has capacity
- The registration fee is £82 per LPA (April 2024) — a reduced fee applies for those receiving means-tested benefits
- Named persons (usually close family members) must be notified before the OPG processes the registration — they have 3 weeks to object if they have concerns about the LPA
- A solicitor prepares the complete LPA documentation, supervises execution, and submits the registration application to the OPG
Frequently Asked Questions
What is the difference between an LPA and an Enduring Power of Attorney?
Enduring Powers of Attorney (EPA) were replaced by LPAs in October 2007. EPAs made before October 2007 remain valid and must be registered with the OPG when the donor starts to lose capacity. LPAs are more comprehensive than EPAs — they cover health and welfare (EPAs only covered property and financial affairs) and must be registered before use. If you have an old EPA, it is still valid but a solicitor advises on whether making a new LPA would be more appropriate.
Can my attorney make gifts from my estate?
An attorney under a property and financial affairs LPA can make gifts but only in limited circumstances. The Mental Capacity Act 2005 s.12 allows attorneys to make gifts on customary occasions (birthdays, Christmas) to persons related to or connected with the donor, and charitable gifts the donor might be expected to make — but gifts must be of "a reasonable amount". For larger gifts or tax planning, the attorney must apply to the Court of Protection for authority. A solicitor advises attorneys on the boundaries of their gift-making powers.
What happens if I do not make an LPA?
If you lose capacity without an LPA in place, no one has automatic authority to manage your finances or make decisions about your care — not even your spouse. A family member must apply to the Court of Protection to be appointed as a deputy. This is a longer, more expensive process (typically £3,000–£5,000+ in professional fees and court costs), subject to ongoing OPG supervision, and the court chooses the deputy (usually from the applicants) rather than you choosing who you trust.
Can an LPA be challenged or revoked?
Yes. While the donor has capacity, they can revoke the LPA at any time — the solicitor prepares a deed of revocation and notifies the OPG. An LPA can also be challenged on the grounds of: lack of capacity when the LPA was made, undue influence or fraud, or improper execution. The OPG investigates concerns about attorneys, and the Court of Protection can remove an attorney who has acted dishonestly or contrary to the donor's best interests.
Do I need both types of LPA?
You can make one or both LPAs. Most solicitors recommend making both — a property and financial affairs LPA and a health and welfare LPA — to cover all eventualities. Each LPA is a separate document and a separate registration fee. Many people make both at the same time to save on professional fees. The two types can appoint different attorneys if that reflects your wishes.