Many people are surprised to learn that an LPA doesn’t automatically take effect when it is signed (unlike a Will). In fact, the rules differ depending on the specific type of LPA. Understanding this difference is key to making sure your wishes are respected when the time comes.
Dementia Action Week 2025 is a timely reminder of the importance of planning ahead. Progressive conditions like dementia can affect anyone, and without an LPA in place, crucial decisions about your life could end up in the hands of strangers. Michael Neal-Brook, Senior Associate in Lodders Care & Capacity team, explains exactly when an LPA takes effect and why timing matters.
Dementia Action Week is an awareness raising campaign that highlights the importance of an early diagnosis for people affected by progressive conditions like Alzheimer’s and other forms of dementia. Sadly, we often meet clients or their families when capacity is already impaired or lost. At that point, it’s too late to make an LPA, and a more complex legal process becomes the only option.
Putting an LPA in place early gives you certainty and peace of mind. It’s a forward-thinking decision that protects your interests and relieves your loved ones of a potentially heavy administrative burden later down the line. Ultimately, it is never too early to make an LPA.
An LPA is a legal document that allows a person to appoint someone they know and trust to make health and financial decisions, should they lose the capacity to do so themselves. The person appointed as an attorney will usually be a family member or a close friend. However, you can choose anyone over 18, providing they are willing to undertake the role. In some cases, you may choose to appoint a professional, such as a solicitor and Lodders can act in this role if you wish.
You must be 18 or over and, crucially, you must have mental capacity when you set up an LPA. It therefore makes good sense for both you and your loved ones to arrange it when you’re still young, have all your mental faculties and are capable of making decisions and signing the document, just in case the unthinkable happens.
People often wrongly assume their next of kin can make financial, medical and care decisions in the event that they are no longer able to, but this is not the case if you have not arranged an LPA. The only exception to this is with children under the age of 18, when a parent or legal guardian may make decisions for or on behalf of a child.
This is a question we’re often asked at Lodders. For Property and Financial Affairs LPAs, you can choose for them to take effect as soon as they are registered with the Office of the Public Guardian (OPG), even while you still have mental capacity. This can be useful if, for example, you’re physically unwell or abroad and need someone to help manage your financial affairs. This can also be very helpful in business dealings, or when dealing with the dreaded utility company. Alternatively, you can specify that it should only be used if you lose capacity.
In contrast, Health and Welfare LPAs only take effect once you have lost mental capacity. This ensures that decisions about your health and personal welfare are made by your attorney only when you are no longer able to make them yourself.
It’s also important to note that an LPA must be registered with the OPG before it can be used, and registration can take up to 20 weeks. As such, we always encourage our clients not to wait or delay the decision unnecessarily.
People often assume lack of capacity relates only to dementia and old age, but people can lose capacity at any time due to accidents or illness.
If you lose mental capacity and haven’t created an LPA:
Thinking about the possibility that illness might affect us or a loved one is difficult, but talking about it and planning for the future is, in fact, a positive step that will help you prepare for whatever lies ahead, and help to ease unnecessary worry, burden, and stress for family and friends.
There is often a further question about how attorneys ‘initiate’ the LPA and how to step in and help. Again, Lodders experts can guide you through this tricky process and give you real-world advice on what to do.
In practice, this can depend on a range of factors including the type of LPA, the organisation you need to deal with (such as a bank, GP surgery or care provider), and whether the person who made the LPA understands and agrees with the proposed actions. Sometimes it’s as simple as showing a certified copy of the LPA with your ID, but other times, especially where capacity is unclear or disputed, you may need to obtain a professional capacity assessment first.
Unfortunately, there’s no one-size-fits-all approach, and the practical steps often vary depending on the decision being made and who else may need to be involved. It’s further complicated by concerns around data protection and the fact that many organisations don’t fully understand the authority that an attorney does or doesn’t have. The process can quickly become a minefield.
It is reassuring to know that someone you trust can make the right decisions for you, if you no longer can. At Lodders, our Care & Capacity specialists can help you put a Lasting Power of Attorney in place, and also support and guide the people you appoint. Whether you need help understanding when and how to use an LPA, or you’re acting as an attorney and facing practical challenges, our expert team can provide clear advice at every step.
To discuss arranging an LPA, or to get support in using one, please speak to a member of our team today.
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