This article explains Lasting Power of Attorney (LPA) in England and Wales, where it is governed by the Mental Capacity Act 2005 and administered by the Office of the Public Guardian (OPG). Scotland and Northern Ireland have separate legal systems for powers of attorney – see the note at the end. This is general information, not legal advice.
Why an LPA exists at all
An LPA lets someone (the “donor”) formally appoint one or more people (their “attorneys”) to make decisions on their behalf if they’re ever unable to make those decisions themselves – because of illness, an accident, or a condition like dementia. Without one in place, if a person loses mental capacity, their family cannot automatically step in: they have to apply to the Court of Protection to be appointed as a “deputy,” which is slower, more expensive, and comes with ongoing court supervision and annual fees. Setting up an LPA while you still have full mental capacity avoids all of that, but crucially, you can only make one while you do have capacity – you cannot set one up for someone else, or for yourself, after capacity has already been lost.
The two types are not interchangeable
Property and Financial Affairs LPA
This covers decisions about money and property – managing bank accounts, paying bills, collecting income and benefits, dealing with investments, and buying or selling property. Depending on what the donor specifies when setting it up, this type of LPA can be used with the donor’s consent even while they still have capacity (useful if, say, a physical illness makes it hard to get to the bank), or restricted so it only comes into effect once capacity is lost.
Health and Welfare LPA
This covers decisions about daily routine, medical care, and where the person lives, including moving into residential care. Unlike the Property and Finance version, a Health and Welfare LPA can only be used once the donor has actually lost the mental capacity to make the specific decision themselves – it cannot be used while they still have capacity, even with their agreement. It can also, if the donor specifically chooses to include this, give the attorney authority to make decisions about life-sustaining treatment; if this box isn’t ticked on the form, that specific decision stays with medical professionals under separate best-interests rules.
You can set up one type or both, and they can name the same attorneys or different ones – it’s common, for example, to appoint a spouse for both but add an adult child as a replacement attorney only for finances.
Choosing attorneys
Attorneys must be 18 or over and, practically speaking, someone you trust completely and who is comfortable acting in the role. You can appoint more than one attorney and decide whether they must act “jointly” (all agreeing on every decision), “jointly and severally” (any one of them can act alone), or a mixture for different types of decision. You can also name replacement attorneys to step in if your first choice can no longer act. Joint appointments avoid one person having unchecked control, but they can be impractical for day-to-day decisions if attorneys live apart or don’t always agree.
The certificate provider
Every LPA needs an independent certificate provider to confirm the donor understands what they’re signing and isn’t being pressured into it. This has to be either someone who has known the donor personally for at least two years, or a relevant professional such as a GP, solicitor, or other qualified assessor – and it cannot be one of the attorneys or a business partner of theirs. This safeguard exists precisely to prevent the kind of financial or welfare abuse that unsupervised, informal arrangements can allow.
Registration is compulsory before use
An LPA has no legal effect until it’s registered with the Office of the Public Guardian, even if it’s been correctly signed and witnessed – you cannot rely on an unregistered LPA in an emergency. Registration can be done as soon as the LPA is signed (recommended, so it’s ready when needed) or later. A fee applies per LPA registered, with a reduction available for people on a low income and an exemption for people receiving certain means-tested benefits – check the current fee and eligibility on GOV.UK, as fees are periodically reviewed. Registration typically takes several weeks, longer if anyone raises an objection during the statutory notice period.
How this differs from an ordinary power of attorney
An ordinary (non-lasting) power of attorney is only valid while the donor still has mental capacity, and it’s automatically revoked the moment they lose it – it’s typically used for a temporary or specific purpose, like someone going abroad and needing a family member to handle a house sale in their absence. It is not a substitute for an LPA and offers no protection if capacity is lost while it’s in use.
Scotland and Northern Ireland: different systems
The details above apply to England and Wales only. Scotland has its own power of attorney system under the Adults with Incapacity (Scotland) Act 2000, registered with the Office of the Public Guardian (Scotland), with its own continuing (financial) and welfare powers of attorney and separate forms and fees. Northern Ireland’s capacity law framework is separate again. If you or the person you’re helping live in Scotland or Northern Ireland, use the relevant local system rather than the England and Wales process described here.
Sources
- GOV.UK, “Make, register or end a lasting power of attorney” – gov.uk/power-of-attorney
- Office of the Public Guardian – gov.uk/opg
- Office of the Public Guardian (Scotland) – publicguardian-scotland.gov.uk
- Age UK, guide to Lasting Power of Attorney – ageuk.org.uk