A will and a Lasting Power of Attorney: two documents, two jobs

Different moments, different people

A will speaks only on death. It appoints executors to collect and distribute your estate and can name guardians for young children. Until that point it has no effect.

A Lasting Power of Attorney (LPA), made under the Mental Capacity Act, covers a different period: when you are still alive but can no longer make decisions for yourself, for example after a stroke, a brain injury or the onset of dementia. The people you appoint are called donees.

What an LPA can cover

You choose which of two areas the donees handle, or both:

• Personal welfare: where you live, your daily care and who you see.
• Property and affairs: your bank accounts, property, investments, bills and tax.

How an LPA is made

You must be at least 21 and have mental capacity when you make it. Someone who is an undischarged bankrupt cannot give powers over property and affairs. There are two forms. Form 1 grants general powers with standard limits. Form 2 is used for powers tailored to your situation, and is drafted with a lawyer.

A certificate issuer, such as a practising lawyer or an accredited doctor, must confirm that you understand what you are signing and that nobody is pressuring you. The LPA is then submitted to the Office of the Public Guardian for registration.

If there is no LPA

Family members do not automatically gain authority to act for a relative who has lost capacity, even a spouse or adult child. Without an LPA they generally have to apply to court to be appointed as deputies, which is slower and costlier than making an LPA in advance.

An ordinary power of attorney does not fill the gap. It is useful while you are capable but absent, for instance overseas, but it stops working once you lose mental capacity.

A related document: the Advance Medical Directive

Separately, an Advance Medical Directive records that you do not want extraordinary life-sustaining treatment if you are terminally ill and unable to decide. It is made while you are 21 or over and of sound mind, and it does a narrower job than either a will or an LPA.

Making both while you can

A will and an LPA each require mental capacity at the time they are made. Neither can be put in place once capacity has gone, which is why the two are often prepared together and reviewed after major changes in health or family circumstances.