If you're planning ahead for the future, you will have come across several types of power of attorney and wondered how they differ. The main difference between a power of attorney and a lasting power of attorney comes down to when each one can be used and how long it stays valid. An ordinary power of attorney is a temporary, everyday legal document, while a lasting power of attorney (LPA) offers long term protection, including cover if you lose mental capacity.

There's also the enduring power of attorney (EPA) to think about, which is an older type of document that some people still hold. Understanding the difference between lasting and enduring power of attorney will enable you to determine whether your requirements are covered, or if you need to put a new document in place.

At Switalskis, our wills and probate team helps people across the UK set up the right type of power of attorney for their circumstances. In this article, we'll explain each type in plain terms, so you can make informed decisions about your own affairs or those of someone you care for.

What is a power of attorney?

A power of attorney is a legal document that gives one or more attorneys the legal authority to act on someone else's behalf. The person granting this authority is known as the donor and the people they choose to act for them are their attorneys.

An ordinary power of attorney is the simplest version of this. It doesn't need to be registered with the Office of the Public Guardian before it's used, which makes it quick and straightforward to set up. It's usually used for temporary tasks, such as managing bank accounts or property matters while the donor is abroad or unwell for a short period.

The most significant difference between an ordinary power of attorney and the other types is that it only remains valid while the donor has full mental capacity. As soon as the donor loses mental capacity, it automatically ends. This means it offers no protection for the future, so it won't be enough if you're planning ahead for the possibility of losing capacity later in life.

What is a lasting power of attorney?

A lasting power of attorney is a legal document that lets you appoint one or more attorneys to make decisions on your behalf if you lose mental capacity in the future, or while you still have mental capacity in some cases. LPAs were introduced in October 2007, replacing the previous system of enduring powers of attorney.

Unlike an ordinary power of attorney, an LPA must be registered with the Office of the Public Guardian before it can be used. Once registered, it remains valid even if the donor later loses mental capacity and it has no expiry date once established. This long-term protection is why an LPA is generally considered the most recommended type of power of attorney for anyone thinking seriously about the future.

There are two types of LPA and most people choose to set up both together. The two types are discussed below.

Property and financial affairs LPA

A property and financial affairs LPA allows your attorneys to manage your money and property. This can include paying bills, managing bank accounts, collecting pension or benefit payments, dealing with your financial assets, claiming benefits on your behalf and buying or selling property. You can give your attorneys full or partial control and you can set out specific instructions or restrictions if you'd like to.

You can appoint multiple attorneys under a financial affairs LPA and you can decide whether they need to act jointly on every decision or whether they're able to act independently of one another. It's also worth naming replacement attorneys in the document, in case your original choice is no longer able to act on your behalf when the time comes.

A property and financial affairs LPA can be used with the donor's consent even while they still have full mental capacity. Some people find this useful if they simply want help managing day to day financial matters. It continues to work in exactly the same way if the donor later loses mental capacity.

Health and welfare LPA

A health and welfare LPA allows your attorneys to make health and welfare decisions on your behalf once you're unable to make them yourself. This covers everyday matters like your daily routine and living arrangements, as well as more serious decisions about medical treatment and medical care.

You can also give your attorneys the authority to make life sustaining treatment decisions if the situation calls for it. This is one of the most personal choices within an LPA, so it's worth thinking carefully about who you'd trust to make these welfare decisions for you. A health and welfare LPA can only be used once the donor has lost mental capacity, unlike a financial affairs LPA, which can be used sooner if the donor agrees.

Many people find it reassuring to know that a trusted friend or family member, rather than a stranger or social services, will be the one making these personal welfare decisions if the need arises.

What's the difference between lasting and enduring power of attorney?

Before October 2007, people used an enduring power of attorney rather than an LPA. The main difference between lasting and enduring power of attorney is what each one covers. An EPA only deals with financial affairs, such as managing bank accounts and paying bills on the donor's behalf. It doesn't cover health and welfare decisions at all, which is one of the reasons LPAs were introduced to replace it.

Another key difference is what happens as the donor's health changes. An EPA can be used by the attorney for ordinary financial matters even before the donor loses mental capacity, but once the donor starts to lose capacity, it must be registered before it can continue to be used. An LPA, by comparison, always has to be registered before it can be used at all, regardless of the donor's health. Therefore it is ready to be used, whatever the circumstances, when the need arises.

Is an enduring power of attorney still valid?

If an EPA was correctly signed and dated before 1 October 2007, it remains valid today and you don't need to replace it with a new LPA covering the same financial matters.

However, an EPA still needs to be registered with the Office of the Public Guardian as soon as the donor loses mental capacity or starts to show signs of a progressive illness that could affect their decision making over time. It's also worth remembering that an EPA has never covered health and welfare decisions, so if you hold an existing EPA and want cover for personal welfare too, you'll need a separate health and welfare LPA alongside it.

If you're not sure whether an existing EPA is still valid or how to go about registering it, it's worth speaking to one of our power of attorney solicitors , who can check the document and guide you through the registration process.

What happens if you don't have a power of attorney in place?

If someone loses mental capacity without a power of attorney in place, their family members can't simply step in and manage things on their behalf, no matter how close the relationship. There's no automatic legal authority for a spouse, partner or child to access someone's bank accounts or make decisions about their care.

Instead, someone usually has to apply to the Court of Protection to be appointed as a deputy. This process takes far longer than registering an LPA, is more costly and involves ongoing reporting to the Office of the Public Guardian. Having a lasting power of attorney set up in advance avoids this entirely, which is why we'd always recommend seeking legal advice sooner rather than later.

Which type of power of attorney is right for you?

There isn't a single answer to which is best, power of attorney or lasting power of attorney, because it depends on what you actually need. If you only need someone to handle a short term task, such as selling a property while you're overseas for a few months, an ordinary power of attorney may be all that's required. However, an LPA can also allow someone to do this with your consent and this would then remain valid if you require this support on an ongoing basis.

For most people planning ahead, an LPA is the more suitable option and is widely seen as the most recommended type of power of attorney available today. It offers long term protection, can cover both financial and property matters as well as health and welfare decisions and remains valid if you later lose mental capacity. Because it needs to be set up while you still have full mental capacity, it's best not to leave it too late. Seeking specialist advice early on can help you avoid making decisions under pressure later.

Are there disadvantages of a lasting power of attorney?

An LPA offers strong long-term protection, but it's worth understanding a few practical points before you set one up.

• Cost: there's a registration fee for each LPA you register with the Office of the Public Guardian. Check the current fee on GOV.UK, as it is subject to change. Setting up both types means paying the fee twice, though reductions may be available depending on your income.
• Timing: there's a four week notice period once your LPA application is submitted, during which the people you've chosen to notify can raise an objection. This means an LPA can take some weeks to register.
• Trust: you need to fully trust the people you appoint as attorneys, since they'll have significant powers granted over your financial decisions and welfare decisions. Naming replacement attorneys will reduce this risk.
• Capacity to set one up: you must have full mental capacity when you make an LPA. 

How to set up a lasting power of attorney

You can apply for an LPA yourself online, but it is best to ask a solicitor to guide you through the registration process. The general steps are the same, but legal advice can give you confidence that you will be properly protected by the approach you have chosen.

• Choose your attorneys: decide who you'd like to make decisions on your behalf and whether they'll act jointly or independently. Consider naming replacement attorneys too.
• Complete the LPA forms: you'll need a separate form for a property and financial affairs LPA and a health and welfare LPA if you're setting up both.
• Find a certificate provider: this is someone independent who confirms you understand what you're signing and haven't been pressured into it. Our team can help you with this.
• Register with the Office of the Public Guardian: your LPA must be registered before it can be used, with a four week notice period for any objections.
• Pay the registration fee: this applies to each LPA document you register.

If your situation is more complicated, such as a family business or attorneys living overseas, our team can prepare the documents for you and manage the registration process on your behalf.

Why choose Switalskis for power of attorney advice

Planning for the future isn't always easy to think about, but having the right legal document in place gives you and your family real peace of mind. Our wills and probate team has years of experience helping people set up lasting powers of attorney , alongside related services such as wills , trusts , inheritance tax planning and care fee planning .

We'll explain your options clearly, help you decide which type of power of attorney suits your circumstances and take care of the registration process for you. If a dispute arises over an existing power of attorney, EPA or LPA, our contested probate team can help with that too.

To find out more about setting up a lasting power of attorney, call us on 0800 1380 458 or get in touch through our website.