What is a Lasting Power of Attorney?

Here at Higgins Miller we specialise in matters of family law, helping clients to deal with emotionally challenging and legally complex issues such as wills and probate, adoption and divorce, and we understand that the people who come to us need a combination of up to the minute, technical legal advice and help in confronting and dealing with the emotions involved. Whether you’re someone looking into granting Lasting Power of Attorney, or have been asked by another person to be nominated as an attorney when they opt for LPA, our experts will be able to explain exactly what it involves and what the rights and responsibilities of all parties involved will be.

In simple terms, the Lasting Power of Attorney is a legal tool that first came into force following the mental Capacity Act 2005, replacing the existing Enduring Power of Attorney. Lasting Power of Attorney makes it possible for a person – known as the ‘donor’ – to nominate a party that they trust – known as the ‘attorney’ – to make decisions on their behalf and offer support if, at some point in the future, they no longer have the mental capacity to make their own decisions. This lack of mental capacity which prompts the wish for Lasting Power of Attorney could arise from a condition such as dementia or an accident or injury.

The phrase ‘mental capacity’, which is at the heart of the use of Lasting Power of Attorney refers to the ability – or lack of ability – to make and communice decisions when they need to be made. A person will be deemed to have mental capacity if they have an understanding of the decision they need to make, why that decision needs to be made and what the outcome of making the decision is likely to be. The creation of the Lasting Power of Attorney was intended to make the process of accessing an effective legal tool simpler than it would otherwise be, at the same time as protecting the interests of the donor. The agency which handles LPOA applications is the Office of the Public Guardian (OPG), which was created at the same time as the LPA itself. The OPG registers the Lasting Power of Attorney and is responsible for dealing with any issues which arise over the actions of an attorney. During the period 2021 to 2022 the OPG received 975,557 applications to register Lasting Power of Attorney, which was 283,811 more than during the period 2020-2021. This number brought the total of LPA currently on the register to more than 6 million. Once a Lasting Power of Attorney has been registered it will cover decisions related to property and financial affairs, health and care or both.

A Lasting Power of Attorney for Property and Financial Decisions

A Lasting Power of Attorney for property and financial decisions can be used while the donor still has mental capacity, or the donor can state that they want the LPA to come into force if there comes a point when they lose mental capacity. A Lasting Power of Attorney will cover issues such as:
 Investing money
 Paying bills
 Paying a mortgage
 Buying and selling property
 Arranging for repairs to be made to a property

When the Lasting Power of Attorney is registered the donor can choose which type of decisions the attorney will be entitled to make, or can simply allow the attorney to make all decisions. If a LPA is created for financial decisions the chosen attorney must keep up to date accounts showing that their personal money is separated from the donors’ money, enabling the donor to access regular updates of how much of their money is being spent and how much is left.

A Lasting Power of Attorney for Health and Care Decisions

A Lasting Power of Attorney of this kind covers decisions about the health and care of the donor, and can only be used once the donor has lost mental capacity. The decisions which an attorney can make under a Lasting Power of Attorney for health and care include the following:
 What the donor should eat
 Where the donor should live
 The medical care provided to the donor
 Who should have contact with the donor
 The kind of social activities the donor should take part in

In some cases, a donor may choose to give their attorney the right to make decisions about
life-saving treatment.

Many people don’t bother registering a Lasting Power of Attorney because they are in a marriage or civil partnership and assume that their spouse will automatically be able to deal with things such as a pension or bank account and to make decisions about health care if they lose the mental capacity to do so. This is not the case, however, and in the eyes of the law a spouse or civil partner without a LPA won’t have the authority to make decisions of this kind.

The forms you need to fill in to register a LPA can be downloaded or filled in online, but we would always advise working with experts like those at Higgins Miller when it comes to completing legal documents of this kind, to ensure that no mistakes are made and also that you understand the impact of a Lasting Power of Attorney. We can also sign the LPA as a ‘certificate provider’, which means that we confirm the donor understands what they are doing and has been placed under no pressure to register a Lasting Power of Attorney.

At the time of writing there is a fee of £82 charged for registering a LPA with the OPG, although people on low incomes may receive a 50% discount while those in receipt of certain benefits won’t have to pay at all. If you opt for a LPA to cover property and financial matters and questions of health and care then the total fee will be £164. As well as helping clients to register a Lasting Power of Attorney, Higgins Miller are ideally placed to act as attorney for a donor, having a full understanding of the legal issues around any decisions which need to be made, as well as being 100% trustworthy. While you may completely trust a close member of your family or a friend, there is always the risk that they might find more complex legal, financial or medical issues too difficult to deal with. If you work with Higgins Miller, however, this is never going to be a problem.

If you’d like to find out more about LPA please call us on 0161 4297251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward-thinking attitude and determination to remain ahead of the competition. The first 20-minute appraisal is provided free of charge, and we’ll give you the first appointment for a fixed fee, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.


December 13, 2022

Legal Aid & Funding