The Ministry of Justice has recently reported an 18% decrease in applications for Lasting Powers of Attorney (LPAs) from January to March 2021, compared to the same quarter last year. An LPA is a useful document, which allows someone to delegate authority for other people, known as attorneys, to make decisions on their behalf. There are two types of LPA; one to deal with your property and finances and one to cover your health and welfare decisions.

So, who can put in place an LPA?

In order to make an LPA, you must be over 18 and have mental capacity. It should be noted that there is no requirement to be able to physically sign or make a mark on the document. In this case, you can direct someone to sign on your behalf in your presence with two witnesses.

Sadly, a loss of mental capacity can strike unexpectedly.  This means that it is important not to delay putting in place your LPAs as there is then a risk you may not have the mental capacity to complete them. There is a specific legal test for mental capacity, but the types of things someone should be able to understand when making an LPA are:  

  • what the LPA is,
  • why they want to make one,
  • who they are appointing as attorneys,
  • why they have chosen these people, and
  • the nature and scope of the powers they are giving to their attorneys.

If someone does not have mental capacity, then they are not able to make an LPA and instead an application to the Court of Protection for a Deputyship may be needed. 

The Court of Protection can appoint someone, known as a Deputy, to make decisions on behalf of someone who lacks mental capacity. Although Deputies can be appointed for both property and finances and personal welfare in the same way as for LPAs, in practice it is more unusual to have a Deputyship for personal welfare.

When making an LPA you have the power to choose who you want as attorneys and can include binding instructions to ensure that your attorneys act in the way you would want and non-binding preferences to help guide their decision making. With a deputyship, the Deputy will be appointed by the Court and will not necessarily be the person you would have wanted or be given the powers you would have chosen. The application process is considerably more time consuming than making an LPA, and there are then reporting obligations on your Deputy.

We would always recommend putting in place an LPA rather than rely on someone making a Deputyship application for you. If you are thinking about putting in place an LPA or have concerns about a loved one and would like to get advice about making a Deputyship application, contact our private client team on 01753 889995 or email and we will be happy to assist you.

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Lucy Wood
Practice Group Leader

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