Lasting Power of Attorney in UK: What Happens in a Crisis and Why Planning Early Matters

Quick answer: A lasting power of attorney (LPA) in the UK allows you to appoint someone to make decisions on your behalf if you lose mental capacity. There are two types: property and financial affairs, and health and welfare. Without an LPA, loved ones may need to apply to the Court of Protection, which is costly and slow.

A lasting power of attorney in UK law is one of the most important legal documents you can put in place while you still have mental capacity. If you are incapacitated by an accident, illness, or dementia before you have set one up, the consequences for your family can be serious and very difficult to reverse.

What is a lasting power of attorney?

A lasting power of attorney (LPA) is a legal document registered with the Office of the Public Guardian (OPG) under the Mental Capacity Act 2005. It allows you to appoint one or more attorneys to make decisions on your behalf if you lose mental capacity.

There are two types of LPA in England and Wales:

1. Property and financial affairs LPA

This covers decisions about your bank accounts and savings, paying bills, managing investments and pensions, selling or managing property, and general financial management. It can be set up to be used before you lose capacity, which can be practical if you need help managing finances while you are still able to oversee things.

2. Health and welfare LPA

This covers decisions about your medical treatment, day-to-day care such as where you live, diet, and daily routine, life-sustaining treatment in an emergency, and access to your medical records. This type of LPA can only be used once you have lost mental capacity to make decisions yourself. It does not operate while you still have capacity.

Who should make an LPA?

Many people assume LPAs are only for elderly people. They are not. Anyone over 18 can make one, and younger adults sometimes face sudden incapacity through accident or serious illness. Consider whether you own property or have savings and investments, run a business, have family members who depend on you financially, have concerns about future mental or physical health, or simply want to make sure that the right people can help you if things go wrong.

The difficulty is that LPAs must be registered before they are needed. You cannot make an LPA if you no longer have the mental capacity to do so.

What happens if you lose capacity without an LPA?

This is where the real cost of not planning becomes clear. If you lose capacity and there is no registered LPA, your family cannot automatically take over your financial or health decisions, regardless of how close they are. A spouse cannot automatically access a sole bank account. Your children cannot make medical decisions on your behalf without formal authority. Instead, someone may need to apply to the Court of Protection for a deputyship order.

A deputyship application can take many months to resolve, costs considerably more than setting up an LPA, and requires ongoing court supervision. While the application is pending, important decisions may be delayed. Bills may go unpaid. Property cannot be sold. Medical decisions can become legally complex.

A realistic example: an adult child needs to manage their parent’s finances after a stroke. Without a registered LPA, they cannot access the parent’s bank account to pay care home fees. A Court of Protection application is needed. Costs mount while waiting for the court’s decision.

How do LPAs work in a crisis?

Financial affairs in a crisis

If you have a registered property and financial affairs LPA, your attorney can access your accounts, manage your investments, pay your bills, and deal with financial institutions quickly. If there is no LPA, urgent access to funds may require a court order, causing significant delay.

Health and welfare in a crisis

If you are unconscious or unable to communicate in hospital, a registered health and welfare LPA allows your attorney to speak with medical staff, receive updates, and make decisions including about life-sustaining treatment if the LPA expressly authorises it. Without one, medical staff will consult family members as best they can, but there is no legal authority for a specific person to make binding decisions.

How to set up a lasting power of attorney in the UK

To set up an LPA you must be aged 18 or over and have mental capacity at the time of making it. The LPA document must be completed with your attorney’s details, include a certificate provider who confirms you understand and are not being pressured, be signed in the correct order by all parties, be registered with the Office of the Public Guardian, and a registration fee is payable, currently £82 per LPA unless a reduction applies.

The registration process currently takes several weeks. This means you cannot set up an LPA in an emergency after capacity is already lost.

What are the duties of an LPA attorney?

An attorney must act in the donor’s best interests, only act within the scope of the LPA, keep their own money separate from the donor’s, keep records of decisions and transactions, act in accordance with the Mental Capacity Act 2005, and not take advantage of their position. Choosing your attorney carefully is important. If an attorney abuses their position, the OPG can investigate and the Court of Protection can revoke the LPA.

Joint versus joint and several attorneys

You can appoint attorneys to act jointly, meaning all decisions must be agreed by all attorneys together, or jointly and severally, meaning any one of them can act alone. Joint and several is usually more practical in a crisis, since one attorney can act quickly without needing the others to be available. Joint-only arrangements can create deadlock if attorneys disagree or if one becomes unavailable.

When should you review your LPA?

Review your LPA if your chosen attorney dies, becomes incapacitated, or is no longer a suitable choice; you divorce or separate from an attorney; your circumstances change significantly; you have concerns about your attorney’s conduct; or relevant laws change. A solicitor can help you update or revoke an existing LPA and create a new one.

Do I need a solicitor for a lasting power of attorney?

You can complete the forms yourself using the OPG website. However, instructing a solicitor from a wills and probate team adds value by reducing the risk of errors in the forms (which can require the process to restart), making sure the attorney appointment is structured properly, advising on whether joint or joint and several is more appropriate, ensuring your instructions and preferences are clearly recorded, and co-ordinating your LPA alongside your will and estate planning.

FAQ: lasting power of attorney UK

Can I make an LPA if I already have dementia?

It depends on your level of capacity at the time of making the LPA. If you still have mental capacity, it may be possible. This must be assessed carefully.

How long does a lasting power of attorney take to register?

Registration with the OPG currently takes several weeks. The OPG will notify you when registration is complete.

What is the difference between an LPA and an enduring power of attorney?

Enduring powers of attorney (EPAs) were replaced by LPAs in 2007. EPAs made before that date are still valid. If you have one, it only covers property and financial affairs, not health and welfare decisions.

Can an LPA be used immediately after it is registered?

A property and financial affairs LPA can be used as soon as it is registered if you choose that option. A health and welfare LPA can only be used once you have lost mental capacity to make the relevant decision yourself.

Related reading

If you are thinking about wider estate planning alongside your LPA, you may also want to read about the residential nil rate band and the tax implications of inheriting or gifting property.

This article is for general information only and is not a substitute for legal advice.