When Is the Right Time to Make a Lasting Power of Attorney?
The best time to make a Lasting Power of Attorney is before you need one.
An LPA can only be made while you have the mental capacity to understand and approve the arrangement. Waiting until illness, injury or declining health makes an LPA necessary may therefore mean waiting until it is too late.
Putting an LPA in place does not mean giving up control. It allows you to choose, in advance, who you trust to help manage your finances, health or care if you are unable to make certain decisions yourself.
What Kate Garraway’s Experience Tells Us About LPAs
Broadcaster and journalist Kate Garraway has spoken publicly about the practical and financial difficulties her family faced after her husband, Derek Draper, became seriously ill with COVID-19.
Despite being married, Kate described being unable to access accounts held solely in Derek’s name, refinance their mortgage or manage certain contracts without his authority. The experience illustrated a common and potentially costly misunderstanding: being someone’s spouse or next of kin does not automatically give you legal authority to manage all their financial affairs or make decisions about their health and welfare.
Her experience has encouraged more people to consider what would happen if illness or injury suddenly left them unable to deal with their own affairs.
The central question should not be, “Am I old enough to need an LPA?” It should be, “Who would be able to help me if I could not make or communicate an important decision tomorrow?”
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document through which you appoint one or more trusted people, known as attorneys, to help you make decisions or make decisions on your behalf.
The person making the LPA is known as the donor. To make one, you must be at least 18 and have the mental capacity to understand the decisions involved.
There are two types of LPA in England and Wales:
Property and Financial Affairs LPA
A Property and Financial Affairs LPA allows your attorneys to help manage matters such as:
- bank and building society accounts;
- household bills;
- benefits and pensions;
- investments;
- tax matters; and
- buying, selling or managing property.
Once registered, this LPA can be used with your permission while you still have mental capacity. This can be useful if you are in hospital, living abroad, experiencing mobility problems or simply need assistance managing certain financial matters.
You can also state that it should only be used if you later lose mental capacity.
Health and Welfare LPA
A Health and Welfare LPA allows your attorneys to make decisions about matters including:
- medical care and treatment;
- your daily routine and personal care;
- where you live;
- care-home arrangements; and
- life-sustaining treatment, where the appropriate authority has been given.
Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA can only be used when you are unable to make the relevant decision yourself.
Official guidance confirms that both types must be registered with the Office of the Public Guardian before they can be used.
When Should You Make an LPA?
There is no single age at which everyone should make an LPA.
The appropriate time is while you are able to consider your choices carefully, discuss them with the people you trust and give clear instructions about how you want decisions to be made.
People commonly consider making an LPA when they:
- buy a home;
- marry or enter a civil partnership;
- start a family;
- begin living with a partner;
- run a business;
- take on responsibility for another person;
- receive a significant medical diagnosis;
- begin planning for retirement;
- travel or spend extended periods abroad; or
- make or update their Will.
However, you do not need to wait for a major life event. An accident, stroke, serious infection or brain injury can affect a person’s ability to make decisions at any age.
Nearly one million people are currently living with dementia in the UK, while Headway recorded 335,409 UK hospital admissions for acquired brain injury during 2023–24—approximately one every 90 seconds.
These figures do not mean everyone will lose mental capacity. They do demonstrate why LPAs should not be viewed solely as documents for later life.
Can You Make an LPA After a Dementia Diagnosis?
A diagnosis of dementia does not automatically mean that someone lacks mental capacity.
Capacity relates to whether the person can understand, retain, use and weigh the relevant information and communicate their decision at the time it needs to be made. Someone in the earlier stages of dementia may therefore still be able to make an LPA.
However, it is important not to delay. As a condition progresses, establishing that the person fully understands the document may become more difficult. The NHS advises that a dementia diagnosis does not necessarily prevent someone from making important decisions at that point in time.
Specialist advice should be obtained where there is any doubt about capacity.
What Happens If You Wait Too Long?
Once a person has lost the mental capacity required to make an LPA, somebody else cannot simply create one on their behalf.
Instead, a relative, friend or professional may need to apply to the Court of Protection to become a deputy. If appointed, the deputy receives a court order setting out which decisions they are authorised to make.
Deputyship is a separate court process. It can involve application fees, formal oversight and an obligation to submit annual reports to the Office of the Public Guardian. The court—not the person who has lost capacity—also ultimately decides who should be appointed and what authority they should receive.
Making an LPA in advance gives you greater control because you decide:
- who should act for you;
- whether to appoint one or several attorneys;
- how multiple attorneys should make decisions;
- who should act as a replacement;
- what preferences your attorneys should consider; and
- what restrictions should apply to their authority.
Does Your Spouse Automatically Have Authority?
Marriage or civil partnership does not automatically allow one person to manage everything on behalf of the other.
Your spouse may be able to use joint accounts in accordance with the bank’s terms, but they will not automatically have authority over accounts, property, investments or contracts held solely in your name.
Being described as someone’s next of kin also does not, by itself, create comprehensive legal decision-making powers over their healthcare.
An appropriately drafted and registered LPA provides formal evidence of the attorney’s authority and makes it clearer who is entitled to act.
Choosing the Right Attorneys
Your attorneys should be people you trust to act honestly, responsibly and in your best interests.
When choosing them, consider whether they:
- understand your wishes and priorities;
- can manage financial or personal matters responsibly;
- are willing to challenge decisions where necessary;
- will communicate effectively with family members and professionals;
- are likely to remain available in the future; and
- can work constructively with any other attorneys you appoint.
You can appoint attorneys to act jointly, meaning they must make specified decisions together, or jointly and severally, meaning they can act together or independently.
The correct arrangement will depend on your circumstances. Appointing several people jointly may provide reassurance, but it can also cause practical difficulties if one attorney becomes unavailable or there is disagreement. McHale & Co Solicitors have a number of talented solicitors on board who are specialised in providing LPAs in all of the above circumstances. You can read more about our LPA team here: Wills, LPAs & Probate – McHale & Co
How Long Does It Take to Register A Lasting Powers Of Attorney?
The Office of the Public Guardian currently advises that registration normally takes between eight and ten weeks where there are no errors in the application.
https://www.gov.uk/power-of-attorney/make-lasting-power
The current registration fee is £92 for each LPA, meaning the Office of the Public Guardian fee for registering both types is £184. Reductions and exemptions may be available depending on the donor’s income and benefits. These figures do not include any separate professional fees for legal advice or preparing the documents.
This registration period is another reason not to wait until an LPA is urgently required.
Planning Ahead Gives You Control
Creating an LPA does not mean expecting the worst. It means putting a practical safeguard in place while you are able to decide exactly who should help you and how they should act.
An LPA can provide reassurance for you and your family by ensuring that trusted people have the authority to step in if illness, injury or changing circumstances make support necessary.
It is often sensible to consider LPAs alongside making or updating your Will and reviewing your wider estate-planning arrangements. A Will governs what happens after your death; an LPA protects your interests during your lifetime.
Our Private Client team can advise you on both types of LPA, help you select an appropriate attorney structure and ensure the documents accurately reflect your wishes.
Frequently Asked Questions About Lasting Power Of Attorney
What is the best age to make a Lasting Power of Attorney?
There is no ideal age. Any adult aged 18 or over can make an LPA, provided they have the required mental capacity. Many people put them in place when buying property, starting a family, making a Will or planning for retirement.
Can my spouse access my bank account if I lose capacity?
They will not automatically have authority over accounts held solely in your name. A registered Property and Financial Affairs LPA can give them—or another person you choose—the legal authority to assist.
Can an LPA be used while I still have mental capacity?
A Property and Financial Affairs LPA can be used after registration with your permission, unless the document states that it should only take effect after you lose capacity. A Health and Welfare LPA can only be used when you cannot make the relevant decision yourself.
Can I change or cancel an LPA?
You can usually cancel an LPA while you still have mental capacity. Some changes, such as appointing an additional attorney, may require you to end the existing LPA and make a new one.
Is an LPA the same as a Will?
No. A Will sets out what should happen to your estate after your death. An LPA appoints people to assist with decisions during your lifetime. It is usually sensible to have both.
What happens if someone loses capacity without an LPA?
A relative, friend or professional may need to apply to the Court of Protection for authority to act as a deputy. The person’s family does not automatically gain the same powers that an attorney would have held.
Do I need both types of LPA?
They cover different decisions. A Property and Financial Affairs LPA cannot generally be used to make health and care decisions, while a Health and Welfare LPA does not give attorneys authority to manage finances. Many people therefore choose to make both.
