7 Questions to Ask Before Creating a Lasting Power of Attorney
The Decisions That Shape Whether an LPA Actually Works
A Lasting Power of Attorney is one of the most important legal documents most people will ever sign. It determines who makes decisions on your behalf — about your money, your property, your medical care and your daily life — at the point when you are no longer able to make them yourself.
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Yet most people give it less thought than they give to writing a will.
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The form itself is straightforward. The decisions behind it are not. Getting those decisions right — before the document is registered — is what separates an LPA that protects you from one that creates problems.
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These are the seven questions worth working through carefully.
1. Who Should I Appoint As My Attorney
This is the most consequential decision in the entire process, and it deserves more than a quick answer.
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An attorney under a Property and Financial Affairs LPA will have the legal authority to manage your bank accounts, sell your home, deal with investments and make financial decisions on your behalf — potentially for years. Under a Health and Welfare LPA, they will make decisions about your care, your treatment and where you live.
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The right person is not necessarily the closest family member. Consider:
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Whether they have the practical capacity to manage complex financial matters
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Whether they understand how you think, what you value and what you would want
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Whether they are likely to be available and engaged over a sustained period
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Whether they can act impartially — including in situations where family members may disagree
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Attorneys have legal duties. They must act in your best interests, keep your finances separate from their own, keep records and, under a financial LPA, manage any investments in accordance with the Trustee Act 2000. Many attorneys are unaware of this last obligation. Our Attorney Guidance on Investment Management sets out what this duty requires in practice.
2. Should I Appoint More Than One Attorney?
Appointing more than one attorney provides a safeguard — but it introduces a structural decision that has real practical consequences.
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Jointly means all attorneys must agree and act together on every decision. This provides a check on each individual attorney but can create delays and, in the event of disagreement, can prevent the LPA from being used at all.
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Jointly and severally means any attorney can act independently. This is more practical day-to-day, but it removes the mutual oversight that joint appointment provides.
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A common approach is to appoint attorneys to act jointly and severally for routine matters, with joint action required for significant decisions — though the standard OPG forms do not always accommodate this nuance without careful drafting.
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The number and structure of attorneys should reflect your specific circumstances, the nature of your assets and the relationships involved.
3. Should I Appoint Replacement Attorneys?
An LPA can only function if there is a willing, able and legally eligible attorney available to act.
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If an original attorney dies, loses mental capacity, becomes bankrupt (which automatically disqualifies them from acting under a financial LPA) or simply becomes unable to fulfil the role, what happens next depends entirely on whether a replacement has been named.
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Without a replacement, the LPA may become inoperable at precisely the moment it is most needed. Appointing at least one replacement attorney — and thinking carefully about who that person should be — is straightforward to arrange at the drafting stage and considerably more difficult to remedy afterwards.
4. Do I Need Both Types of LPAs?
There are two distinct types of Lasting Power of Attorney, and they cover different ground entirely.
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A Property and Financial Affairs LPA covers financial decisions — bank accounts, investments, property, income and expenditure. It can, if you choose, be used while you still have capacity.
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A Health and Welfare LPA covers personal decisions — medical treatment, care arrangements, day-to-day welfare and, if you specify it, decisions about life-sustaining treatment. It can only be used once you have lost capacity.
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Many people assume that one covers the other or that one is more important than the other. Neither is true. A financial LPA without a welfare LPA leaves critical decisions unprotected. A welfare LPA without a financial one leaves whoever manages your care without the legal authority to fund it properly.
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For most people, creating both is the right course of action.
5. What Guidance Should I Give My Attorneys?
The LPA itself grants authority. It does not, on its own, tell your attorneys how you want that authority used.
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Written guidance — whether incorporated into the document as instructions or preferences, or provided separately as a letter of wishes — can make a significant difference to how your attorneys act. This is particularly important in areas where reasonable people might make very different decisions:
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How your investments should be managed (and to what risk profile)
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Whether and how family members should be financially supported
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What care arrangements you would or would not want
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How your home should be dealt with
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What your priorities are when interests appear to conflict
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Attorneys managing investments have specific legal obligations under the Trustee Act 2000. They must act in accordance with the standard investment criteria, consider diversification and, in many cases, take professional advice. Our Attorney Checklist on Investment Management Compliance provides a practical framework for attorneys taking on this responsibility.
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If you have not provided guidance, your attorneys are left to make their best judgement. That may not align with yours.
6. Have I Considered Digital Assets?
Digital assets are now a material component of many people's financial lives — and one of the most commonly overlooked areas in LPA planning.
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This is not simply a question of online banking. Digital assets may include:
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Cryptocurrency and digital investment accounts
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Online share trading platforms
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Business email accounts and cloud-based files
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Domain names and websites with commercial value
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Digital photographs, documents and records with personal or financial significance
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Subscription services and recurring payment arrangements
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Some platforms have strict terms about account access by third parties, even those acting under a registered LPA. Planning ahead — identifying what exists, where it is held, how it is accessed and what your attorneys should do with it — avoids the situation where assets are effectively inaccessible.
7. How Will My Attorneys Prove Their Authority?
A registered LPA is a lengthy document. Banks, financial institutions, healthcare providers and other organisations will want to verify that your attorney has the legal authority to act before they accept instructions.
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There are two practical points worth knowing:
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First, certified copies of the registered LPA can be made — either by a solicitor or by the Office of the Public Guardian — and these carry the same legal weight as the original. Having several certified copies available avoids the need to submit the original document to multiple organisations and the risk of it being lost.
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Second, the Office of the Public Guardian operates an online register that allows organisations to verify a registered LPA digitally. Attorneys should be aware this facility exists.
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Neither of these points is complicated. Both are worth addressing before the document is put away and forgotten.
Before You Proceed
An LPA that has been properly thought through, carefully drafted and appropriately guided will do what it is supposed to do. One that has been completed quickly, without fully working through the decisions behind it, may not.
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Our supporting guides expand on several of the issues raised above:
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10 Mistakes People Make With an LPA — the errors that arise most often and how to avoid them.
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Attorney Guidance on Investment Management — what the law requires of attorneys who manage financial assets.
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Attorney Checklist on Investment Management Compliance — a practical reference for attorneys taking on investment responsibilities.
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If you would like to discuss your own arrangements, the team at Wills, Tax & Trusts Ltd. is available to help.