How a Lasting Power of Attorney Works.

Explore questions relating to this topic below.

When Can You Use a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) can only been used once it has been registered with the Office of the Public Guardian. However, just because an LPA is registered does not mean the attorney within the LPA has the power to manage the donor's affairs. 

The powers within the LPA are only granted to the attorney when the donor is deemed to have lost mental capacity (see our section on how someone is determined to have lost mental capacity). 

How Do You Activate a Lasting Power of Attorney?

You do not have to actively ensure a Lasting Power of Attorney (LPA) is activated in order for the attorney to be given the power to manage the donor's affairs.

As long as the LPA has been registered with the Office of the Public Guardian, it should be considered 'created', and as soon as the donor is deemed to have lost mental capacity the attorney is granted the power to manage their affairs.

 
 
 
How Do You Know if Your Lasting Power of Attorney is Valid?

Once your Lasting Power of Attorney (LPA) has been drafted and registered with the Office of the Public Guardian, it should be deemed valid, unless the OPG has returned the document with highlighted issues that will need to be amended and re-submitted before it can be considered valid. 

I Have An Ordinary Power of Attorney, What Now?

For Donors:

Once the Ordinary Power of Attorney (OPA) has been signed by all relevant parties, it should be considered a valid document. This means you have legally given the attorney the power to manage your affairs on your behalf. The OPA will be in effect until one of a number of things happens, including if: 

  • You die.

  • All of the attorneys die.

  • You are deemed to be mentally incapacitated.

  • You revoke the OPA (this is done through filing what is known as a Deed of Revocation, see our section on revoking a Power of Attorney for more information).

For Attorneys:

Once the Ordinary Power of Attorney has been signed by all relevant parties, it should be considered valid. This means that you have legally been granted the power to look after the donor's affairs until they die, lose mental capacity, revoke the LPA or you and your fellow attorneys die. 

 
 
I Have a Lasting Power of Attorney, Now What?

The Donor:

Once the Lasting Power of Attorney (LPA) has been registered with the Office of the Public Guardian (OPG), it should be considered 'created'. This means that, should you lose the mental capacity to look after your affairs, then decisions about either your health and welfare, or property and finances, depending on which type of LPA you have registered, will be made by the individual(s) you have appointed as your attorney.

Until, if ever, you lose mental capacity, your life will be unaffected by the registration of the LPA and you can go about living your life as normal, safe in the knowledge that you have someone ready to look after your affairs should you unfortunately lose mental capacity.

The Attorney:

Once the LPA has been registered with the OPG, it should be considered 'created'. This means that, in the event the donor loses the mental capacity to manage their affairs, you will be legally granted the power to manage the donor's affairs on their behalf. The affairs you have the power to manage depend on which type of LPA has been created (see section on Types of Lasting Power of Attorney). Until, if ever, the donor loses their mental capacity, you are not required to do anything out of the ordinary, and you can continue with your life as normal. 

 

How Long Does a Lasting Power of Attorney Last?

Once a Lasting Power of Attorney (LPA) has been registered with the Office of the Public Guardian, it should be deemed valid and in effect. 

The LPA can then be used, meaning that if the donor loses the mental capacity to manage their affairs, the attorney named in the LPA will be legally granted the power to manage the donor's affair on their behalf, until one of a number of things happens, namely:

  • The donor dies.

  • All of the attorneys named within the document die.

  • The donor revokes the LPA. (See our section on how to revoke and LPA).

  • The donor is declared bankrupt.

  • All of the attorneys are declared bankrupt.

  • The donor registers a new LPA with the Office of the Public Guardian.

Unless any of these events occur, the LPA is deemed to be legally valid.

 
How Long Does an Ordinary Power of Attorney Last?

Once an Ordinary Power of Attorney (OPA) has been signed by all relevant parties, it should be deemed as valid. The OPA will be a legal document, meaning that the attorney named in the document has the power to manage the donor's affairs, until one of a number of things happens, namely: 

  • The donor dies.

  • The donor loses mental capacity.

  • The donor revokes the OPA (see our section on how to revoke an Ordinary Power of Attorney).

  • The donor is declared bankrupt.

  • All of the attorneys named in the OPA die.

  • All of the attorneys named in the OPA are declared bankrupt.

Unless any of these events occur, the OPA should continue to be legally valid.

 

How to Use a Lasting Power of Attorney

Once the Lasting Power of Attorney (LPA) is registered with the Office of the Public Guardian it becomes a legally binding document. Until, if ever, the donor loses mental capacity, no further action will need to be taken in regards to the LPA, unless the donor would like to revoke the LPA (see our section on Revoking an LPA). 

If the donor is deemed to have become mentally incapacitated, then the attorney is automatically granted the legal power to manage the donor's affairs. Those powers depend on which type of LPA has been registered (see our section on Types of Lasting Powers of Attorney). The attorney should manage the donor's affairs in accordance with the donor's best interests and any wishes included in the document by the donor.  

 
When Does a Lasting Power of Attorney End?

A Lasting Power of Attorney (LPA) is only created once it has been registered with the Office of the Public Guardian. An LPA only "ends" when one of a number of things happen, namely:

  • The donor dies.

  • All of the attorneys named in the LPA die.

  • The donor revokes the LPA (see our section on Revoking a Lasting Power of Attorney). 

  • The donor is declared bankrupt.

  • All of the attorneys are declared bankrupt. 

  • The donor registers a new LPA with the Office of the Public Guardian.

The LPA ends should one of these events occur, but if not then it carries on as a valid legal document.

 

Can An Attorney in a Lasting Power of Attorney Also Be the Executor of the Donor's Will?

Yes, there is no regulation specifically preventing the attorney in a donor's LPA from also being the executor of their Will.

 
How to Relinquish a Lasting Power of Attorney

If you are the donor:

You can relinquish a Lasting Power of Attorney by filing what's called a Deed of Revocation. For more information on how to do this, see our page Revoking a Lasting Power of Attorney.

If you wish to change the attorney named in the LPA without completely revoking the document, you must have another attorney ready in order to do so. 

If you are an attorney:

You must inform the donor that you no longer wish to be the attorney named within the LPA. The donor must then either file a Deed of Revocation or replace you with another attorney.

The attorney has no formal power to remove themselves from an LPA without the donor themselves either filing a Deed of Revocation or replacing the attorney. 

 

Can You Create a Lasting Power of Attorney for Someone Who is Already Mentally Incapacitated?

No. If the individual is deemed to have lost mental capacity, the questions surrounding their ability to give sufficient and reliable consent means that they cannot create a legally valid Lasting Power of Attorney (LPA), unless the LPA has already been prepared but not registered.

If there is no LPA in place, then a person can apply to become a deputy for the individual through the Court of Protection.

When Can a Lasting Power of Attorney be Granted?

A Lasting Power of Attorney (LPA) can be prepared and filed at any time in a person's life, provided that they are over the age of 18 and have the mental capacity to prepare the LPA. The LPA can only be used when the donor loses mental capacity.

Do You Need to Hire a Legal Professional in Order to Create a Lasting Power Of Attorney?

No. Anyone can prepare their own Lasting Power of Attorney (LPA) and register it with the Office of the Public Guardian. 

If you wish to draft your own LPA, we provide the relevant forms for free and you can download them here.

To register an LPA, you will need to file it with the Office of the Public Guardian, which costs a fee of £82. Please also note that if you make any errors when drafting the form, once submitted you will have to pay a correction fee to amend any errors.

Although you can draft and register an LPA independently, it is advisable that you use a legal professional to do so on your behalf. This is because legal professionals can ensure the documents are drafted meticulously, with no errors and can provide you with impartial advice relating to some of the key areas within the document, such as appointing an attorney and helping you to express any wishes about how you want your attorney to act on your behalf,  should you lose mentally capacity.

 
 
 
Is a Lasting Power of Attorney Legally Binding?

Yes. As long as a Lasting Power of Attorney (LPA) has been registered with the Office of the Public Guardian, it is deemed valid and legally binding. 

Can An Attorney Refuse Treatment on Behalf of the Donor?

Yes. As long as the Lasting Power of Attorney (LPA) in question is a Health & Welfare LPA, the attorney has the power to refuse treatment on behalf of the donor.

This is an important decision to make which could have huge consequences for the donor, and demonstrates why it is advised that LPAs are drafted with help from a legal professional, as they can help you to express what you want to happen should you lose mental capacity. Legal professionals can also help to reduce the chance of miscommunication or your LPA not reflecting how, to the fullest extent, how you wish your attorney to act on your behalf.

What Rights Does an Attorney Have Within a Lasting Power of Attorney?

An attorney named in an LPA has certain rights to make decisions relating to the donor. For more information, see our section on what you can do as an attorney.

 

The scope of these decisions can be specified by the donor, or they otherwise fall into pre-determined categories. (See our section on the different types of LPAs).

Does a Will Override a Lasting Power of Attorney?

No. A Will and a Lasting Power of Attorney (LPA) are separate legal documents, and an LPA is automatically revoked should the donor die.

Who Can Override a Lasting Power of Attorney?

There are provisions for people to object to an LPA when it is granted. The Court of Protection can also hear cases where you can argue that an attorney is abusing their responsibilities. For more information, see our section on Disputes About Lasting Powers of Attorney.

How Many Attorneys Do You Need in a Lasting Power of Attorney?

You are required to appoint at least one attorney in your Lasting Power of Attorney (LPA). However, it is advisable to appoint at least 2 attorneys to minimise the risk of the LPA being invalidated due to a sole LPA falling ill or dying, whilst having 2 attorneys also helps ensures that the decisions made on your behalf are thoroughly thought through. 

Who Needs to Sign the Lasting Power of Attorney Document?

An LPA needs at least 3 signatures in order for it to be registered and become active. The required signatories are:

  • The donor.

  • The attorney, or all of the attorneys should there be more than one.

  • The certificate provider (an impartial witness to the signing of the document).

All signatories must be over the age of 18 and must be able to prove that they have the capacity to sign the document.

The donor and the attorney(s) must have their signatures witnessed by the certificate provider.

 
 
 
 
 
 
 

Who Can Be a Witness for the Signing of a Lasting Power of Attorney?

The role of a witness (known as the Certificate Provider) in a Lasting Power of Attorney (LPA) is to confirm that the donor has the mental capacity to understand what they are signing and that they understand the consequences of signing an LPA.

This means that the Certificate Provider must either be a professional with the ability to assess mental capacity, for example a doctor, social worker or solicitor, or someone who has known the donor for at least 2 years and can assess whether there has been any deterioration in the donor's mental capacity (for example their sibling).

Who Should You Appoint As Your Attorney?

Who you appoint as your attorney should depend on what you are creating a Lasting Power of Attorney (LPA) for. 

If you are filing a Health & Welfare LPA, then your attorney should be someone who you are confident will act in your best interest and will follow the instructions that you set out within the document.

If you are filing a Property & Finance LPA, then your attorney should be someone who you believe is competent in handling financial affairs. They should also be someone you trust and someone you are confident will act in your best interest.

Some people choose to grant a legal professional as their attorney. This is because legal professionals should act impartially and donors can have confidence that a legal professional will handle your affairs as laid out in the document, without a conflict of interest.

 
 

How Does An Attorney Sign For the Donor Should The Donor Become Mentally Incapacitated?

Unless otherwise specified in the Lasting Power of Attorney (LPA), if the donor becomes mentally incapacitated the attorney is granted the right to sign documents on their behalf.

When signing a document, the attorney should use set wording.

 
What Rights Does an Attorney Have Within an LPA?

An Lasting Power of Attorney (LPA) does not contain any set rights in and of itself. However, it does give attorneys the right to make decisions on behalf of the donor. The scope of these decisions can be wide-ranging, and certain decisions can be excluded from the rights of the attorney within the document itself.

 

The extent of the decisions that an attorney can make on behalf of the donor means that it is extremely important that you select the right attorney, as well as thoroughly consider whether you would like to add any conditions when drafting the LPA.

You can find out more about the responsibilities of an attorney within an LPA here. 

Image by Michael Benz