The document you probably haven’t thought about: Lasting Power of Attorney 

Sarah Cornish, Partner and Head of Private Client, explains the importance of every adult, regardless of age, drafting and registering an LPA (Lasting Power of Attorney) before they lose the ability to do so.

On his programme this week, personal finance guru Martin Lewis, offered one of the clearest distinctions we’ve heard: ‘A Will dictates what happens when you’re dead. A Lasting Power of Attorney is for when you’re alive.’  

This simple observation captures something that many people miss entirely, believing a Lasting Power of Attorney (LPA) is for the old and unwell. 

A Will is a document that explains to those who survive you, what you want to happen to your estate after you die. An LPA is a document that details what you want to happen to you, your finances, your health and your care, should you lose the mental capacity to manage your own affairs while you are still alive.  

Losing mental capacity is not always due to age. A stroke, a serious accident, or a diagnosis of early-onset dementia are all possible events that can remove a person’s ability to make important decisions at any stage of life.  

And when that happens, without an LPA in place, even those closest to you have no legal authority to act on your behalf. Not your spouse, not your adult children, not your business partner or closest friends. No one. 

There are two distinct types of LPA and most people should consider having both. 

Property and Financial Affairs LPA 

This type of LPA authorises your chosen attorney (or attorneys) to manage your financial affairs. That includes accessing bank accounts, paying bills and mortgage payments, managing investments, buying or selling property and making financial decisions on your behalf. 

Crucially, a Property and Financial Affairs LPA can be used while you still have capacity, with your permission, which makes it a practical tool for situations where you are temporarily incapacitated, seriously ill, or simply wish to delegate. 

Without one, your bank accounts, even a joint account, can be frozen if the bank is notified that one of the holders has lost capacity. Your mortgage payments could fall into arrears, bills can go unpaid and property cannot be sold. 

If you run a business, no one may have the authority to sign contracts, pay staff wages, or keep operations running. The financial paralysis that can result from the absence of an LPA is often swift and severe. 

Business owners face a particular exposure here. For example, a sole trader who loses capacity without a financial LPA in place can leave a business effectively rudderless, not because no one wants to help, but because no one has the legal authority to act.  

Health and Welfare LPA 

A Health and Welfare LPA covers an entirely different set of decisions. These are the ones that many people find hard to consider, but which can matter just as profoundly. It authorises your attorney to make decisions about your medical treatment, your care arrangements, where you live, your day-to-day routine and your end-of-life wishes.  

Unlike the financial LPA, it can only be used once you have lost the mental capacity to make these decisions for yourself. Without a Health and Welfare LPA, those decisions don’t automatically fall to your family. 

Medical professionals and care providers will make decisions in what they believe to be your best interests and while they will try to consult those close to you, they are not legally required to follow your family’s wishes. 

Your spouse may have a view on whether you would want to be resuscitated, or whether you would want to be cared for at home rather than in a care facility, but without an LPA in place, that view carries no legal weight. 

A Health and Welfare LPA is your opportunity to put your own wishes on record and appoint people you trust to advocate on your behalf. It is, in that sense, one of the most personal and important legal documents you can have. 

The alternative is the Court of Protection. And it’s not ideal 

If you lose capacity without an LPA in place, the only legal route for your family to take control is to apply to the Court of Protection for a Deputyship Order. Martin Lewis described this process as ‘a hassle, long and costly’. He was not overstating it. 

The application process typically takes several months, sometimes considerably longer. There are application fees, potential legal costs and ongoing supervision requirements once a Deputy is appointed. The Court will make its own assessment of who is best placed to act for you, which may or may not be the person you would have chosen.  

And throughout that process, your financial affairs may be in limbo, your bills may go unpaid, and your family may be unable to access the funds needed to arrange the care you require. 

An LPA, drawn up while you have capacity and registered with the Office of the Public Guardian in England and Wales, helps avoid all the potential costs, stress and delay of the alternative. 

The one rule that catches everyone out 

An LPA must be made and registered before you lose mental capacity. This is not a document you can arrange once it becomes necessary; by then, it is too late. The process of drafting, signing and registering an LPA takes time and, if it’s to be as good as you need it to be, professional advice. But it requires that you have the mental capacity to understand what you are signing. 

Martin Lewis has had his own LPAs in place since his thirties. The message is clear: this is not a document only for older people and there is no good reason to wait. We would encourage anyone without an LPA in place, regardless of age, to give it the same priority as making or reviewing a Will. 

If you would like advice about Lasting Powers of Attorney for you and those close to you, our team can help you understand your options and put the right safeguards in place for your unique circumstances. 

Please get in touch today and don’t put off what could be the most important decision of your life. Contact Sarah Cornish at sarah.cornish@coodes.co.uk or call 0800 328 3282.