9 March 2023

When does a Lasting Power of Attorney take effect?

By Emma Langley, Solicitor, Hayes + Storr.

If you have been asked to act as an attorney for someone you may wonder when it will come into effect, especially if the Lasting Power of Attorney (LPA) was made when your friend or relative was in good health.

Lasting Power of Attorney (after October 2007)

Lasting powers of attorney (LPAs) in English law were created under the Mental Capacity Act 2005 and came into effect on 1 October 2007. They replaced the previous system of Enduring Power of Attorney (EPA) which had been in place since 1986.

LPAs have the option to allow a donor (the person making the LPA) to register the LPA with immediate effect, whereas an EPA could only be registered by an attorney once the donor started to lose mental capacity.

Lasting powers of attorney were introduced to allow people to appoint attorneys in respect of both their financial decisions and their healthcare decisions. Separate documents are required to appoint each type of attorney.

LPA – Property and Financial Affairs

When a donor creates a lasting power of attorney for property and financial decisions, they need to decide whether the document could be used while they still have capacity (i.e. as soon as the lasting power of attorney is registered) or only in the event that they lose their mental capacity.

If the donor chooses to give power to an attorney with immediate effect, the attorney can only deal with the donor’s financial affairs when they are instructed to do so, for as long as the donor continues to have mental capacity. If the donor prefers to manage their financial affairs until they lose their mental capacity, then the attorney will not be able to act for them until such time.

Unlike the enduring power of attorney, most lasting powers of attorney are registered in advance to ensure they are available and ready to use in the event of loss of capacity, as the registration process is rather lengthy. Registration of a lasting power of attorney with The Office of the Public Guardian can take up to 20 weeks.

The Office of the Public Guardian is a government body that, within the framework of the Mental Capacity Act 2005, polices the activities of deputies, attorneys and guardians who act to protect the interests of those who lack mental capacity.

LPA – Health and Welfare

A lasting power of attorney for health and welfare decisions follows the same registration process as for property and financial affairs. However, the key difference is that a healthcare lasting power of attorney may only be used if the donor no longer has mental capacity. There is no option for the donor to delegate their healthcare decision making sooner.

Important considerations

If you have been appointed as an attorney for someone, it is important to remember that the LPA is the donor’s document, not yours.

It is the donor who makes the LPA and who determines how it can be used and, in some cases, when it will be effective. An attorney cannot override the donor’s decisions in this regard.

How can we help?

LPAs are important documents, make sure you understand the nature and effect of an LPA before starting to act.

For further information, please contact Emma Langley at Hayes + Storr Solicitors on 01263 825959 or email emma.langley@hayes-storr.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.