No lasting power of attorney? What your family faces

An LPA is a legal document in which you choose someone you trust, your attorney, to make decisions for you. You must be 18 or over and have mental capacity, meaning the ability to make your own decisions, when you make it.

There are 2 types in England and Wales. You can make one or both. Each is a separate document with its own registration fee.

• Property and financial affairs. Your attorney can use it as soon as it's registered, with your permission. So it can help while you can still decide, but only if you say so.
• Health and welfare. This can only be used when you can't make your own decisions.

Either way, you stay in charge for as long as you're able to decide. The catch is that you can only make one while you have capacity. Wait until you need it and it may be too late.

An LPA made through the GOV.UK process is legally binding only in England and Wales. Scotland and Northern Ireland have their own power of attorney arrangements, so if you or a parent live there, check that nation's rules.

Source: GOV.UK: Make, register or end a lasting power of attorney

Example: Helen never made an LPA

Helen and David are an invented couple. Helen has a stroke and can no longer make her own decisions. She never made an LPA, so David applies to the Court of Protection to become her property and affairs deputy. Say he's appointed as a new deputy under general supervision. Here's what that costs against registering an LPA.

Had Helen made and registered both LPAs while she was well, she'd have paid the £92 fee twice. The deputy's supervision fee, by contrast, keeps coming every year the supervision continues.

But the difference I'd weigh above the fees is who acts. With an LPA, you choose your attorney while you still can. You can even ask them first. With deputyship, nobody was chosen in advance. Someone applies once you can't choose for yourself. Whether they're appointed is up to the court.

If there's someone you'd want handling your money or your care, ask them now. Then name them in your LPA.

Sources: GOV.UK: Become a deputy, fees and GOV.UK: Register a lasting power of attorney

Making an LPA means signing it while you have capacity. Registering it means applying to the Office of the Public Guardian (OPG). Your attorney needs both.

Registration takes 8 to 10 weeks if there are no mistakes in the application. Send it off as soon as it's signed. OPG can then check it for errors while you can still deal with them. Some errors can be fixed. Others can't. For those you'd need a new LPA, which is only possible while you have capacity.

Sources: GOV.UK: Make a lasting power of attorney, GOV.UK: Register a lasting power of attorney and OPG guide LP12

Don't assume you're heading to court. If the donor, meaning the person the LPA is for, made it while they had capacity, the attorneys named in it can still apply to register it. What nobody can do is make a new one for them once their capacity has gone.

Example: Helen signed but never registered

Now say Helen signed both LPAs the week before her stroke, naming David as her attorney, but nobody sent them off. David can't use them yet. As her named attorney, though, he can apply to register them. If OPG can register them, he acts as the attorney she chose rather than applying to be her deputy.

Before anyone sends it off, I'd want your family to know three things:

1. Only the donor or the named attorneys can apply. Being a husband, wife or child isn't enough on its own. If there's more than one attorney, how they were appointed affects who must join the application. Check the OPG's LP12 guide against the document.
2. It's too late to fix mistakes. OPG warns that once the donor has lost capacity, mistakes can't be corrected. If they stop OPG registering it, the LPA can't be used. Someone may then need to apply to the Court of Protection for deputyship or for a declaration that the LPA can be treated as valid.
3. Applying isn't a guarantee. But registering late doesn't rule it out either. It depends on the document, so I wouldn't call it valid or invalid until it's been checked.

Source: OPG: Make and register your lasting power of attorney, a guide (LP12)

The £92 is the standard fee. OPG's form LPA120 is how you apply to pay less. It's the donor's circumstances that count. Depending on those and the current form's conditions, there are two kinds of help:

• Exemption. There's no registration fee to pay.
• Remission. You pay half.

If the donor receives Universal Credit, OPG assesses them for a remission. They can't be assessed for an exemption on that basis. Being assessed isn't a promise they'll qualify either.

Check before you pay. OPG says payment is made when you apply and refunds can't be given afterwards. Read the current LPA120 for the full conditions and the evidence it asks for before you send the application.

This help covers the OPG registration fee only. It won't reduce an adviser's charges.

Source: GOV.UK: Applying for a reduced fee for your power of attorney

1. Do you have one? Find the documents. Don't assume.
2. Is it registered? If it's signed but not registered and you still have capacity, apply now, while you can still fix a mistake or make a new LPA.
3. Does it cover both types? One doesn't give your attorney the powers of the other.
4. Is your partner covered? You each need your own. Yours does nothing if they lose capacity.
5. Could the donor pay less? Check the current LPA120 before you apply and pay.

If any answer is no and you live in England or Wales, make the LPAs you need while everyone still has capacity. Then register them straight away.