What is the Difference Between the Two and Do You Need Both
If you have explored having a Lasting Power of Attorney, you will probably have come across the fact that there are two types. More people are starting to realise they should have one, but fewer understand what each one does, the situations in which each can be used, and why having both is often the best way to protect yourself and your family.
In this article, our private client team explains the difference between the two, what each one covers, where the boundaries sit, and why the distinction is more important than it might first appear.
What Is a Lasting Power of Attorney?
In short, a Property and Financial Affairs Lasting Power of Attorney allows someone you trust to deal with your money and property, while a Health and Welfare Lasting Power of Attorney allows someone to make decisions about your care and medical treatment if you lose mental capacity. Most people benefit from having both because each covers completely different aspects of life.
A Lasting Power of Attorney is a legal document that lets you appoint someone (an attorney) to make decisions on your behalf if you lose the mental capacity to make them yourself. It can only be set up while you still have capacity. Once that is gone, the option to set up an LPA is gone with it.
In England and Wales, there are two types:
- Property and Financial Affairs LPA
- Health and Welfare LPA.
They cover different areas of your life, and neither one covers what the other does.
Property and Financial Affairs LPA
This type of LPA gives your attorney authority to deal with your financial and property matters, for example:
- managing bank and building society accounts
- paying bills and ongoing expenses
- collecting income, benefits, or a pension
- dealing with investments
- buying or selling property on your behalf
One point that many don’t realise is that a Property and Financial Affairs LPA can be used while you still have capacity, if you choose to allow it. Some people set one up precisely because they want a trusted person to handle their finances day to day, not just in an emergency. Whether to allow that is your choice, and it should be clearly recorded when the LPA is drafted.
If you own a property jointly and lose capacity without an LPA in place, the property will usually not be capable of being sold or transferred without the Court of Protection becoming involved. This includes cases where there is a practical need to do so, such as moving into care or releasing equity. The other owner cannot simply act alone, even if they are your spouse. That situation tends to become complicated quickly, and the only route through it is usually a Court of Protection application, which takes time and costs considerably more than an LPA would have.
Health and Welfare LPA
The Health and Welfare LPA can cover decisions about your personal care and medical treatment, including:
- where you live and the type of care you receive
- day-to-day decisions about your diet, routine, and activities
- medical treatment and procedures
- whether to refuse treatment on your behalf
- decisions about life-sustaining treatment, if you choose to include that authority
This type of LPA can only be used once you have lost capacity. Your attorney cannot step in while you are still capable of making these decisions yourself.
This is the LPA that most people think they do not need until they do. Without it, healthcare and care professionals make decisions in your best interests, in consultation with family where possible. But consultation is not the same as authority. If your family disagrees with a medical decision, they generally have no legal authority to require healthcare professionals to follow their wishes without a Health and Welfare LPA in place. That can put families in very difficult positions at already difficult times.
If you want your attorney to have the power to refuse life-sustaining treatment on your behalf, this must be explicitly included in the LPA. It is not assumed. This is one of the areas where professional drafting matters, and where a regulated solicitor can make sure your wishes are recorded accurately.
The Key Differences Between These LPAs
The easiest way to think about it is that Property and Financial Affairs LPAs cover your money and property, and Health and Welfare LPAs cover you physically and your care. Each one is limited to its own area. An attorney appointed under a Property and Financial Affairs LPA has no authority to make decisions about your medical treatment, and vice versa, unless you appoint the same attorney for both.
The other practical difference is when each can be used. The Property and Financial Affairs LPA can be activated while you still have capacity if you choose to allow this. The Health and Welfare LPA cannot; it only applies once capacity has been lost.
Can One Attorney Deal with Both Health and Financial Decisions?
Yes, but only if they have been appointed under both types of Lasting Power of Attorney. A Property and Financial Affairs LPA does not automatically give someone authority to make medical or care decisions. Likewise, a Health and Welfare LPA does not allow someone to access bank accounts or deal with property. If you want the same person to make both types of decisions, they must usually be appointed under both LPAs.
Do You Need Both Types of LPA?
Most people who take legal advice on this are told yes, and the reasoning is straightforward. The two LPAs cover different parts of your life. Losing capacity does not affect only one of those areas; it affects everything. Having a Property and Financial Affairs LPA but no Health and Welfare LPA leaves a significant gap. The same applies the other way around.
There is also a practical point. Both LPAs need to be registered with the Office of the Public Guardian before they can be used. Registration with the Office of the Public Guardian commonly takes several weeks and, depending on demand, can take considerably longer. Setting them up in advance, while you have capacity and are not under any immediate pressure, is the sensible approach.
I Have a Will — Do I Still Need an LPA?
Yes. This is one of the most common misconceptions we come across, and one that leaves many people vulnerable.
A Will and an LPA do completely different jobs. Your Will deals with what happens to your estate after you die. It is an important document that sets out who inherits, who acts as executor, and how your assets are distributed. However, it has no effect whatsoever while you are alive.
An LPA deals with what happens if you lose capacity while you are still living. It covers who can manage your finances, access your accounts, make decisions about your care, and act on your behalf when you cannot. A Will cannot do any of that.
The two documents are not alternatives. They cover different periods of your life and different sets of circumstances. Having one does not reduce the need for the other. If anything, people who have taken the time to make a Will are often the most likely to understand why an LPA makes sense, because they have already thought carefully about what happens when they are no longer able to make decisions themselves.
What Happens Without an LPA?
We covered this in our previous guide When Families Run into Problems Without a Lasting Power of Attorney. In short, the process becomes more difficult, more expensive, and considerably slower. The frustration this causes can also lead to disputes amongst family members.
Without a Property and Financial Affairs LPA, banks will not take instructions from family members, accounts can become inaccessible, and property decisions stall. Without a Health and Welfare LPA, families are consulted but not in charge. For anyone who has been through this without an LPA in place, it is rarely something they would choose to repeat.
The Court of Protection can appoint a deputy to act where no LPA exists, but this is a formal court process, not a quick one, and it carries ongoing supervision and reporting obligations that an LPA does not.
Deputyship applications can take many months to complete and involve court fees, ongoing supervision by the Office of the Public Guardian and continuing reporting obligations. In many cases they are significantly more expensive than putting LPAs in place while capacity remains.
A Reminder on Timing
LPAs cannot be set up after capacity has been lost. This is the point most people understand in theory but underestimate in practice. Capacity can be lost suddenly, following a stroke, an accident, or a medical event, as well as gradually because of an illness or due to old age. There is no way to predict it, and no opportunity to act once it has happened.
A guide published by the Office of the Public Guardian showed that “40% of people who say they are not interested in LPA don’t think they’ll lose capacity, don’t care, or don’t want to tempt fate”. However, statistics show that every 90 seconds someone is admitted to hospital in the UK with an acquired brain injury, while one in three people over 65 will develop dementia. Access the guide here: LASTING POWERS OF ATTORNEY – THE IMPORTANCE OF MAKING THE RIGHT CHOICE.
Setting up both LPAs while you are well and under no pressure is not preparing for the worst. It is removing a problem that would otherwise land entirely on the people closest to you.
Lasting Power of Attorney Solicitors in Blackpool and Thornton-Cleveleys
MJV Solicitors helps clients in Blackpool, Thornton-Cleveleys and across the Fylde Coast and throughout Lancashire set up both types of Lasting Power of Attorney. We regularly assist clients based in Fleetwood, Thornton-Cleveleys, Bispham, Blackpool, Poulton-le-Fylde, Lytham St Annes and the surrounding areas.
Our law firm is authorised and regulated by the Solicitors Regulation Authority and our team prepares Lasting Powers of Attorney in accordance with the law of England and Wales. When drafting LPAs for our clients, we explain matters clearly, record instructions accurately, and ensure documents are properly executed and registered.
We take time to understand your situation, explain the options clearly, and make sure the LPAs you put in place accurately reflect your wishes.
If you would like clear, professional advice about setting up an LPA, contact our experienced private client solicitors in Blackpool and the Fylde Coast today.
Most people spend considerable time planning what should happen after they die by making a Will. A Lasting Power of Attorney is about protecting you while you are still alive. Putting both Property and Financial Affairs and Health and Welfare LPAs in place provides reassurance that, if you are ever unable to make decisions yourself, the people you trust most will be able to do so on your behalf.
Complete our enquiry form or contact us by calling 01253 858231 or emailing us at info@mjvlaw.co.uk
Read our previous article for related information: Protecting Your Future: Why You Should Set Up a Lasting Power of Attorney.
Frequently Asked Questions
Yes. There is no legal requirement to have both. But each one covers a completely different area of your life, and having only one leaves the other area unprotected.
For a Property and Financial Affairs LPA, yes, if you choose to allow this when it is set up. For a Health and Welfare LPA, no. That type can only be used once you have lost capacity.
Yes. You can use the same person for both, or different people for each. You can also appoint more than one attorney for either type.
You can cancel an LPA at any time while you have capacity. If you want to change your attorney, the existing LPA will need to be revoked and a new one put in place.
Registration with the Office of the Public Guardian currently takes several weeks. The LPA cannot be used until it is registered, which is another reason to set one up before it is needed.
No. Attorneys are legally required to act in your best interests, follow the principles set out in the Mental Capacity Act 2005, and take into account your wishes and feelings. They are also subject to oversight by the Office of the Public Guardian.
For more Frequently Asked Questions about LPAs, please visit our Lasting Power of Attorney service page.
