Why Every Adult Needs an LPA

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Beyond the Form: The Power of Your LPA

An LPA grants significant authority to people you trust – your “attorneys” – to manage your money, home, finances, and critically, your health and welfare. This includes decisions about:

• Where you live: This is where your preference for live-in care becomes vital.
• How you are looked after: Your choice of care, such as receiving support in your own home, can be explicitly outlined.
• What medical treatment you do or don’t receive.

It’s not just about who you choose, but how they make decisions for you. Sarah emphasises that LPAs are about building “bespoke, genuinely meaningful legal documents.”

 

The Crucial Element: Mental Capacity and the “Best Interests” Framework

A common misunderstanding is that mental capacity is a binary concept – you either have it or you don’t. Sarah clarifies that mental capacity is “decision-specific” and exists “on a spectrum.” You might have the capacity to make some decisions (like who manages your money) but not others (like daily shopping). Capacity can also fluctuate, meaning a blanket assessment is never appropriate.

Crucially, any decision made for someone who lacks capacity must be made in their “best interests,” as outlined in the Mental Capacity Act 2005. This involves considering their past and present wishes, feelings, beliefs, and values. While family and friends are consulted, having an LPA legally empowers your chosen attorneys to act on your behalf, providing a clear framework for these important decisions.

 

Why LPAs Matter, Especially for Live-in Care: Reducing Disputes

Many people consider LPAs for “future proofing,” anticipating a time when they might lose capacity due to age, illness, or an accident. Sarah highlights that this isn’t just for older individuals; anyone can unexpectedly lose capacity.

If you have a clear preference for live-in care, for example, as you grow older and your needs change, building this into your Health and Welfare LPA is crucial. Sarah actively encourages this, stating that 90% of her clients express a wish to receive care at home. While your preferences are not legally binding in the same way as “instructions” (which should be used with extreme caution as they can be too restrictive), they provide invaluable guidance for your attorneys.

By clearly stating your preference for your type of care, such as live-in care, you:

• Guide your attorneys: They understand your desires, even if they’re not rigidly bound by them, helping them make decisions you’d approve of.
• Reduce disputes with local authorities: Your expressed wish can help prevent situations where local authorities might attempt to place you in care that suits their budget rather than your stated preference.
• Minimise family disagreements: As Sarah notes, siblings often have “very variable opinions on what the best form of care is.” A clear preference in your LPA can prevent costly and emotionally draining “battles on the home front” between well-meaning family members. This provides a clear roadmap for your loved ones, reducing the emotional burden during an already stressful time.

 

The Consequences of Not Having an LPA: The Court of Protection

Without an LPA, if you lose capacity, decisions about your finances and welfare are no longer straightforward. For financial matters, a family member would typically need to apply to the Court of Protection to become a “Deputy.” For health and welfare decisions, professionals are legally required to act in your “best interests,” but if there’s a dispute or no clear consensus, an application to the Court of Protection might still be necessary.

The Court of Protection process can be both lengthy and expensive:

• Timescales: Applications can take anywhere from “several weeks to several months to beyond a year,” depending on complexity, urgency, and whether the application is contested. The court often faces backlogs.
• Costs: While the initial court application fee is £421, legal fees can quickly accumulate, running into “thousands” and potentially “north of five figures” in complex or contentious cases. There might also be additional fees for a “Deputy security bond” and annual supervision by the Office of the Public Guardian. These costs typically come from the assets of the person who has lost capacity.

This significant time and financial burden underscore the importance of proactive planning with an LPA, which can largely bypass the need for Court of Protection involvement.

 

Who Can Be Appointed as an Attorney?

Anyone over 18 with mental capacity can be an attorney. For financial LPAs, you cannot be bankrupt or subject to a debt relief order. Beyond these criteria, you can choose trusted family members, dear friends, or even professionals.

It’s vital to choose someone who is suitable for the role, not just based on their relationship to you. Sarah shares an anecdote about a couple who wanted all three sons as attorneys, but upon candid discussion, one was clearly unsuitable for the significant responsibilities involved. Attorneys literally “step into the shoes of somebody else,” managing their home, bank accounts, finances, and wellbeing, all while acting in their best interests. The role is a “real privilege” and should be taken “very seriously.”

 

Recompensing Your Attorneys: Beyond Out-of-Pocket Expenses

While professional attorneys are paid for their time, what about friends or family? Non-professional attorneys are entitled to be reimbursed for “reasonable out-of-pocket expenses” (e.g., fuel, parking, food), for which clear records should be kept.

For payment for time spent, this needs to be explicitly “built into the LPA itself” when it’s created. Sarah advises against vague wording or overly specific clauses, encouraging a detailed discussion with a lawyer to ensure your wishes for compensation are clear and achievable, avoiding the need for a stressful and expensive Court of Protection application later. This foresight can prevent “financial abuse” and helps attorneys understand the “rules surrounding all of this.”

 

Types of Power of Attorney in the UK

Sarah outlined three main types of Power of Attorney in the UK:

1. General Powers of Attorney (or Ordinary Powers of Attorney / Section 10 Power of Attorney): These are for when you still have mental capacity and need someone to do things on your behalf, often for specific reasons or a temporary period (e.g., managing a rental property while you’re abroad). They generally cease to be valid if you lose capacity. They are “much smaller and simpler” documents, usually more “narrow” in scope.
2. Enduring Powers of Attorney (EPAs): These were the predecessors to LPAs and are no longer created, but valid EPAs made before October 2007 remain in force. They only cover financial affairs and typically only needed to be registered if the donor lost mental capacity. Sarah notes that the shift to LPAs was largely a “safeguarding point,” as EPAs allowed for greater “scope for vulnerability” if used inappropriately before registration.
3. Lasting Powers of Attorney (LPAs): The most common type now, in place since 2007. They enable you to nominate people you trust to make decisions on your behalf if you can’t make them anymore or need support. LPAs are centrally registered with the Office of the Public Guardian (OPG), providing a safer and more transparent system. The OPG is a government body that helps people in England and Wales stay in control of decisions about their health and finance, and makes important decisions for others who cannot decide for themselves, by supervising attorneys and deputies. There are two distinct types of LPA:
   • Property and Financial Affairs LPA: Covers managing money, property, and finances. This type offers the option to allow attorneys to help you even if you still have capacity (for example, if you’re physically unable to manage your affairs, but still mentally capable), or just if you lose it.
   • Health and Welfare LPA: Covers decisions about your daily routine (like washing, dressing, and eating), medical care (including life-sustaining treatment if specified), and crucially, where you live and who provides your care, making it ideal for specifying preferences like live-in care. This LPA can only be used once you have lost mental capacity to make the relevant decision yourself.

 

The Process and Costs of Creating an LPA

If you decide to create an LPA, a solicitor like Sarah will meet with you to understand your wishes, identify any vulnerabilities, and draft a bespoke document. This often involves a few meetings to “pin down what they really want.” Sarah notes that clients often start with a simple idea, but through discussion, develop a truly “bespoke, tailored, personalised document” that gives them “so much peace of mind.”

Once signed and dated by all parties (donor, attorneys, and a “certificate provider” who confirms you understand the document and aren’t under duress), the documents are sent to the Office of the Public Guardian (OPG) for registration, which makes them legally valid and usable. This registration typically takes “two to three months” from when the OPG receives the documents. From the initial meeting with a solicitor to having the final, registered documents in hand, Sarah suggests allowing around six months as a general guide, acknowledging that the client’s speed in making decisions can influence this.

In terms of cost, Sarah’s firm, Renaissance Legal, offers fixed fees. For an individual creating both a Property and Financial Affairs LPA and a Health and Welfare LPA, it’s currently £1100 plus VAT. For a couple making “mirror documents” (where each appoints the other, and then perhaps the same substitute attorneys), it’s £1350 plus VAT. These fees cover the entire process from initial contact to final registered documents. (Prices correct at time of publication July 2025).

While there isn’t a specific “fast track” process for urgent cases during registration, Sarah confirms there is “breathing room for priority for urgent need” if you contact the OPG to explain the circumstances (e.g., a critical house sale that requires immediate financial authority).

 

Common Misconceptions and Myths

Sarah highlights three key misconceptions she frequently encounters:

1. “It’s just a form-filling exercise”: This is arguably the biggest and most dangerous myth. As discussed, LPAs are complex, bespoke legal documents with significant implications. Attempting to complete them without professional advice can lead to critical errors or omissions that render the document ineffective when most needed.
2. “I don’t need to worry about it now, I’m in good health”: People often defer making an LPA, believing it’s only for old age or declining health. Sarah strongly counters this, reminding us that “none of us are indestructible.” A life-changing accident or a sudden, severe diagnosis could happen at any time, rendering you without capacity. “You can’t make an LPA once you’ve lost capacity,” leaving you and your loved ones in a “real pickle” and potentially forcing them into the costly and lengthy Court of Protection process.
3. “My spouse/children can just pick it up for me”: This is a very common and dangerous assumption. Being married or related does not automatically grant legal authority to manage another adult’s affairs if they lose capacity. Without an LPA, even the closest family members have no inherent legal right to make financial or health decisions for you, leading directly back to the Court of Protection.

 

Plan Ahead: Peace of Mind with an LPA

Making an LPA is an essential part of comprehensive future planning. It empowers you to retain control over who makes decisions on your behalf and ensures your values and wishes are respected, even if you can no longer articulate them yourself. This proactive step provides invaluable peace of mind, not just for you, but also for your loved ones, alleviating potential burdens and disputes during challenging times.

For those considering live-in care as a preferred option for future support, explicitly stating this preference within your Health and Welfare LPA is a powerful way to ensure your wishes are heard and respected. Don’t wait until it’s too late – a well-drafted and registered LPA is a wise investment in your future autonomy and the harmony of your family.

 

Our heartfelt thanks to Sarah O’Sullivan from Renaissance Legal for her expert guidance and passionate advocacy for effective future planning through LPAs.