How to set up a lasting power of attorney

In England and Wales there are two separate lasting powers of attorney and they are made on separate forms with separate fees. A property and financial affairs LPA covers money: bank and building society accounts, benefits and pensions, paying bills, dealing with tax, managing investments, and buying or selling property. A health and welfare LPA covers care and treatment: where you live, day-to-day care, medical treatment, and — if you specifically grant it — decisions about life-sustaining treatment.

Most people who make one need both, and the second is the one most often skipped. Families discover the gap at the worst moment: the attorney can pay the care home invoice but has no legal standing to choose the care home, or can manage the bank account but cannot be involved in a discharge decision from hospital.

The two types behave differently in time. A property and financial affairs LPA can be used as soon as it is registered if you say so on the form, which is genuinely useful for people who are physically unwell, abroad, or simply want help. A health and welfare LPA can only ever be used once you lack capacity to make the particular decision — it does not give an attorney a say while you can decide for yourself.

The life-sustaining treatment option on the health and welfare form is a specific choice you make: either your attorney can consent to or refuse life-sustaining treatment on your behalf, or that decision stays with the doctors. Neither answer is the right one for everyone, but leaving it unconsidered is worse than either.

You can add restrictions and guidance. Restrictions are binding — for example, that the attorney must not sell your home while a named person lives in it, or that they must not act until a doctor certifies you lack capacity. Guidance is advisory. Restrictions that are unclear or unworkable are the most common reason the Office of the Public Guardian rejects an application, so keep them precise and few.

Consider also whether you want an advance decision to refuse treatment, sometimes called a living will, which is a different document with different legal effect. A valid advance decision refusing a specific treatment binds clinicians, and interacts with a health and welfare LPA in ways worth taking advice on if you want both.

Decide who your attorneys will be. Attorneys must be 18 or over and, for a property and financial affairs LPA, must not be bankrupt or subject to a debt relief order. Choose people who are honest, competent with the specific subject matter, and likely to outlive or outlast the need — and be honest about family dynamics, because an attorney appointment can put someone in an impossible position between siblings.

Decide how they act together. Jointly means every decision requires all of them, which is a safeguard but also a trap: if one attorney dies, becomes bankrupt or loses capacity, a jointly appointed group generally collapses altogether. Jointly and severally means any of them can act alone, which is more resilient and more flexible but relies on trust. A mixed approach — jointly for certain named decisions, severally for the rest — is possible. Appointing at least one replacement attorney is the single most valuable resilience step and is routinely omitted.

Complete the forms. GOV.UK provides an online service that guides you through the questions and produces a document to sign, and paper forms are available for those who prefer them. Reforms under the Powers of Attorney Act 2023 have been modernising the process, including how documents are made and evidenced, so use the current service rather than an old downloaded form.

Get a certificate provider. This is someone who confirms you understand the document and are not under pressure. It can be someone who has known you personally for at least two years, or a professional such as a GP, solicitor or social worker. It cannot be a family member, an attorney, or a business partner or employee of you or an attorney. Choosing someone who cannot lawfully act is a frequent cause of rejection.

Sign in the correct order, each signature witnessed. The order matters legally: you sign the relevant sections, then the certificate provider, then the attorneys. A document signed out of order can be invalid, and it will only be discovered when the Office of the Public Guardian checks it — or, worse, years later when it is needed.

Register it with the Office of the Public Guardian. Registration is mandatory: an unregistered LPA cannot be used at all, no matter how correctly it was signed. There is a fee for each LPA, with reductions or exemptions for people on a low income or certain benefits. Registration takes several weeks, and there is a statutory waiting period during which objections can be made, so do not leave it until the document is needed.

Register straight away rather than filing it in a drawer. This is the most common and most damaging mistake in the whole area: people complete the forms, put them away 'until they are needed', and then find that the donor has lost capacity and registration is no longer possible. An LPA made but never registered is worth nothing.

Tell the people who will need it. Give copies or the online access code to your bank, your GP practice, your pension provider and your attorneys. The Office of the Public Guardian runs a service that lets an attorney generate a code allowing a third party to view the LPA online, which is far more practical than posting certified copies around.

An attorney is a fiduciary. The Mental Capacity Act 2005 sets the framework: a person must be assumed to have capacity unless it is established otherwise; they must be given all practicable help to make their own decision before being treated as unable to; an unwise decision is not evidence of incapacity; and anything done for someone who lacks capacity must be in their best interests and the least restrictive option available.

That last point is the one attorneys most often get wrong. Best interests is not what the attorney would do, and not what is most convenient for the family. It requires considering the person's past and present wishes, their beliefs and values, and consulting people close to them. Selling the family home because it simplifies matters, when the donor always said they wanted to stay, is not a best interests decision.

Attorneys must keep the donor's money separate from their own, keep records of transactions, and not profit from the role beyond reasonable expenses. They can only make gifts within narrow limits — customary gifts on birthdays, weddings and at customary occasions, of a size reasonable in the context of the estate, to people connected with the donor or to charities the donor supported. Anything larger requires an application to the Court of Protection, and inheritance tax planning by an attorney without court approval is a common and serious breach.

Attorneys cannot make a will for the donor, and cannot change one. Where a will needs to be made or altered for someone who lacks capacity, that is a statutory will application to the Court of Protection.

A health and welfare attorney cannot demand a particular medical treatment; they can consent to or refuse treatment on the donor's behalf, within the scope granted. Clinicians are not obliged to provide treatment they consider clinically inappropriate.

The Office of the Public Guardian supervises and investigates. If you suspect an attorney is abusing the role — money disappearing, isolation of the donor, decisions that make no sense — report it to the OPG, which can investigate and apply to the Court of Protection to remove the attorney. In urgent cases involving risk of harm, contact the local authority's adult safeguarding team and, if there is immediate danger, the police.

A donor with capacity can revoke an LPA at any time, and must tell the Office of the Public Guardian. An attorney can also step down. Both need to be done formally — telling the family is not enough.

If the person has already lost capacity, a lasting power of attorney is no longer possible. The question becomes whether one exists that nobody knew about, and if not, whether a court appointment is needed.

Search first. The Office of the Public Guardian maintains registers of lasting powers of attorney, enduring powers of attorney and deputyship orders, and will confirm whether a registered document exists. Solicitors' files, a will file and the donor's own papers are the other places to look. Older enduring powers of attorney made before October 2007 remain valid for property and financial affairs and can still be registered when capacity fails, so an old-looking document is not necessarily obsolete.

If nothing exists, apply to the Court of Protection to be appointed a deputy. There are two types, mirroring the LPA split: property and affairs deputyship, which is routinely granted, and personal welfare deputyship, which is granted much more rarely because the court generally prefers to decide welfare matters case by case.

Deputyship is heavier in every respect. There is an application fee and often a hearing fee, a supervision fee each year, a security bond, and an annual report to the Office of the Public Guardian accounting for what you have done. It takes months rather than weeks. This is the direct cost of not having made an LPA, and it falls on the family.

Some things can be done without a deputyship. Where the only issue is benefits, the DWP can appoint an appointee to receive and manage benefit payments, which is a much simpler process. Small sums held by banks and NS&I can sometimes be released under their own procedures. A single one-off decision can be taken to the Court of Protection without a full deputyship. Ask before assuming deputyship is the only answer.

Legal aid is very limited in this area, though it remains available for some Court of Protection matters concerning deprivation of liberty. Free initial help is available from Citizens Advice and from specialist charities in dementia, brain injury and learning disability, and many solicitors offer fixed fees for straightforward deputyship applications.

Scotland has an entirely separate system under the Adults with Incapacity (Scotland) Act 2000, and an English LPA form is not the right document for a Scottish resident. The Scottish equivalents are a continuing power of attorney, covering property and financial affairs, and a welfare power of attorney, covering health and personal welfare. Both can be included in a single combined document, which is normal practice.

The certification requirement is stricter than in England. A Scottish power of attorney must include a certificate from a practising solicitor, a practising member of the Faculty of Advocates, or a registered medical practitioner, confirming after interviewing the granter that they understand the document and are not acting under undue influence. There is no lay certificate provider equivalent.

Registration is with the Office of the Public Guardian (Scotland), which is a separate body from the England and Wales OPG. A continuing power of attorney can take effect on registration if the granter says so, or only on incapacity; a welfare power of attorney can only ever be exercised once the granter has lost capacity to make the decision.

Where no power of attorney exists and capacity has gone, Scotland uses guardianship or intervention orders granted by the sheriff court, not the Court of Protection. Guardianship applications require medical reports and a report from the local authority or a mental health officer, and orders are granted for a fixed period rather than indefinitely. There is also an access to funds scheme allowing a nominated person to operate an incapable adult's bank account without full guardianship, which has no direct English equivalent and is much simpler.

Scotland's system is generally regarded as easier to use and quicker to register than the English one, and the combined document covering both financial and welfare matters removes the split-document problem that causes so many English families to hold only half of what they need.

The Office of the Public Guardian (Scotland) also investigates concerns about attorneys' handling of financial affairs, with welfare concerns going to the local authority and the Mental Welfare Commission for Scotland.

Northern Ireland is the most different of the three jurisdictions, and the difference matters a great deal. There is no lasting power of attorney in Northern Ireland. The document used is an enduring power of attorney under the Enduring Powers of Attorney (Northern Ireland) Order 1987 — the same instrument that was replaced in England and Wales in 2007.

A Northern Ireland enduring power of attorney covers property and affairs only. There is no health and welfare equivalent, which means that a family in Northern Ireland cannot appoint someone in advance to make care and treatment decisions in the way an English or Scottish family can. Health and care decisions for someone lacking capacity are made under a best interests framework by the clinicians and health and social care trust involved.

The Mental Capacity Act (Northern Ireland) 2016 was passed to modernise this area, but it has been commenced only in part, and the position on the ground continues to rest substantially on the 1987 Order and the common law. Anyone planning ahead in Northern Ireland should check the current commencement position rather than assume the 2016 Act is fully in force.

Registration works differently too. An enduring power of attorney in Northern Ireland is registered with the Office of Care and Protection, part of the High Court, and registration is required when the donor is becoming or has become incapable — not, as in England, before the document can be used at all. A properly executed but unregistered Northern Ireland EPA can still be used while the donor has capacity.

Where no enduring power exists and capacity has gone, the Northern Ireland route is controllership: the Office of Care and Protection appoints a controller to manage the person's property and affairs, with supervision and accounting requirements broadly analogous to English deputyship.

The practical consequences are significant for anyone moving between jurisdictions or with property in more than one. A document made in one part of the UK is not automatically effective in another, and while there are mechanisms for recognising powers granted elsewhere, they are not straightforward. If you own property in Scotland and live in England, or have moved to Northern Ireland, take advice specific to both jurisdictions rather than assuming one document covers everything.