When Does a Lasting Power of Attorney Come Into Effect

One of the most common questions about Lasting Powers of Attorney is when they can actually be used, and the answer depends on which type of LPA is involved. Getting this wrong can mean an attorney tries to act before they have the authority to do so, or a family assumes help is available before it legally is.

Property and Financial Affairs LPA

A Property and Financial Affairs LPA can be used as soon as it has been signed and registered with the Office of the Public Guardian, if you chose that option on the form. When making this LPA, you decide whether your attorneys can act as soon as it is registered, with your consent, or only once you have lost capacity. Even where it can be used straight away, many people ask their attorneys to hold off until help is actually needed, so they keep control of their own finances for as long as possible.

Health and Welfare LPA

A Health and Welfare LPA works differently and can only be used once you have lost the mental capacity to make the relevant decisions yourself. This means an attorney cannot use this LPA to make care or medical decisions on your behalf while you are still able to make them, regardless of whether the document has already been registered.

Why registration matters

Neither type of LPA can be used at all until it has been registered with the Office of the Public Guardian, even if it has already been signed and witnessed correctly. Registering both documents at the point they are drafted, rather than waiting until capacity is lost, avoids delays at a time when family members may already be dealing with a health crisis. Our Powers of Attorney team can guide you through registration so both documents are ready to use whenever they are needed.

What happens if capacity is lost before an LPA is made

If an LPA was signed correctly while the person still had capacity, it can still be registered after they lose capacity, so a signed but unregistered LPA is not wasted. If someone loses mental capacity before an LPA has been made at all, neither type of LPA can be created, since the person signing must understand what they are agreeing to. In that situation, a family member usually has to apply to the Court of Protection for a deputyship order instead, which is a longer and more expensive route than registering an LPA in advance. Our Court of Protection team can explain how deputyship works if your family is already in this position. Advice from our Powers of Attorney solicitors early is the most reliable way to avoid this outcome.

Frequently Asked Questions

Can my attorney use my Property and Financial Affairs LPA straight away?

Yes, once it is registered, if you chose on the form to allow it to be used while you still have capacity. Many people choose to only let their attorney act once help is actually needed.

Can my attorney make medical decisions for me before I lose capacity?

No, a Health and Welfare LPA can only be used once you have lost the mental capacity to make those decisions yourself. Your attorney has no authority to act while you are still able to decide for yourself.

What if I lose capacity before setting up an LPA?

You would no longer be able to create an LPA, since you must understand what you are signing at the time. A family member would usually need to apply to the Court of Protection for a deputyship order instead.

How Roche Legal Can Help

To make sure both LPAs are registered and ready before they are needed, book a discovery call with our team.

Roche Legal is a firm of solicitors in England and Wales, and the information on our website is based on the law here. We regularly advise on estates with assets, beneficiaries or family overseas, so please do get in touch if that's your situation.