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Power of Attorney: What It Actually Changes (and What It Doesn’t)

If someone you care for is getting older or dealing with a health condition that could affect their ability to make decisions, Power of Attorney is one of the most important things to get in place. Not because something is about to go wrong, but because setting it up while things are still fine is exactly when it works best.

There are two separate types of Power of Attorney in England and Wales, and they cover very different ground. Understanding what each one does and when each one becomes relevant helps you make an informed decision rather than guessing.

Health and Welfare LPA

This one covers decisions about how someone is looked after as a person. That includes where they live, what kind of care they receive, what medical treatment they consent to, and day-to-day things like their diet or daily routines.

The key thing to know here is that a Health and Welfare LPA can only be used when the person who made it (the donor) has lost mental capacity. While someone still has the ability to make their own decisions, even if they’re unwell, this LPA stays in the background. It doesn’t give a solicitor the power to override a capable person’s wishes.

One area people often ask about is life-sustaining treatment. When setting up this type of LPA, the donor can choose whether their solicitor has the authority to make decisions about treatment that keeps them alive. That’s a deeply personal choice, and it’s one that’s better made and documented in advance than left uncertain during an already difficult time.

Property and Financial Affairs LPA

This one covers money, property, and financial decisions. Paying all the bills, managing bank accounts, collecting benefits or a pension, selling a home… all of this falls under a Property and Financial Affairs LPA.

Unlike the Health and Welfare LPA, this one can be used while the donor still has capacity, if they choose to allow that. Some people really benefit from having a trusted person helping with finances while they’re still very much in control of their own life. This could perhaps be because of a physical disability, or simply because they want support they can rely on.

Without this LPA in place, if someone were to lose capacity, their family cannot simply step in and access accounts or manage property on their behalf. In a case like this, they’d have to apply to the Court of Protection for a deputyship, a process that takes considerably longer, costs more, and offers a lot less flexibility.

What Neither LPA Changes

Having an LPA doesn’t mean someone hands over control of their life. The solicitor’s role is to act in the donor’s best interests, following their known wishes, values, and preferences wherever possible. A good solicitor is guided by what the person would have wanted, not by what’s most convenient.

An LPA also doesn’t override a person while they still have capacity. The donor can continue making decisions for themselves for as long as they’re able to. And if they have concerns about how their solicitor is acting, there are safeguards built into the system, including the Office of the Public Guardian, which oversees solicitors and can investigate concerns.

When to Set These Up

The obvious answer is sooner rather than later. An LPA can only be created by someone who has mental capacity at the time of signing. Once that capacity is lost, the opportunity to put one in place is gone.

That doesn’t mean there has to be an urgent reason to act. Many people set up both LPAs in their 50s or 60s as part of getting their affairs in order, in the same way they’d update a will or review insurance. It’s a practical step.

If someone has recently received a diagnosis that may affect their cognitive health over time, or if they’re heading into a major surgery, those are often the moments that prompt people to act. But neither of those situations has to apply. Anyone over 18 can make an LPA, and doing it early simply keeps options open.

The Practical Side

Both types of LPA are registered with the Office of the Public Guardian before they can be used. The registration process takes a few months, so it’s worth starting the process before there’s any urgency.

Many families choose to put both in place at the same time, since the situations that call for one often eventually call for the other. But they’re legally separate documents, and someone might decide that only one applies to their circumstances.

If you’re supporting someone through this process or trying to figure out what applies to your own situation, it’s worth getting guidance that’s tailored to the specific circumstances. The decisions involved, particularly around who to appoint as a solicitor, deserve more than a quick answer.