In this article Robert Mair looks at issues relating to property and affairs including:

  • What is a Property and Affairs Lasting Power of Attorney (LPA)?
  • Similarities to Personal Welfare LPA
  • Who can make a Property and Affairs LPA?
  • The role of the attorney
  • Your will
  • Property
  • Gifts
  • Disagreements with your attorney

What is a Property and Affairs Lasting Power of Attorney (LPA)?

A lasting power of attorney is a legal document that allows you to choose other people who you want to make decisions on your behalf including circumstances in which you lack mental capacity to make the decision for yourself or want assistance in so doing.  An LPA allows you to plan in advance the decisions you want to be made on your behalf if you lose capacity to make them yourself, the people you want to entrust with making these decisions, and how you want the people you select to make these decisions.  The appointed person can make decisions,subject to any restrictions or conditions you might have included, about your:

  • Property
  • Bills
  • Bank accounts

Similarities to Personal Welfare LPA

This lasting power of attorney allows you to choose people to act on your behalf (as an attorney) and make decisions about your property and financial affairs, when you are unable or want help to make decisions for yourself. If you also want someone to make decisions about your health and welfare, you will need to register a separate form. There are several similarities between a Personal Welfare LPA and a Property and Affairs LPA, and much of what is detailed here also applies to a Property and Affairs LPA.

This includes:

  • Mental Capacity Act 2005
  • Restricting the Attorney and including stipulations
  • The Office of the Public Guardian
  • Appeals, objections and the Court of Protection

Who can make a Property and Affairs LPA?

Anyone over the age of 18 can make a Property and Affairs LPA although, if you are married or in a civil partnership, you cannot make a joint application. However, a spouse/partner can be appointed as your attorney in your LPA and vice versa.

You can only make an LPA for yourself. You cannot make one for someone else, although you can get help from a legal adviser to make one if required.

You cannot sign and invoke your Property and Affairs LPA if you are bankrupt, and the LPA can be cancelled if you become bankrupt after setting it up. This does not apply to Personal Welfare LPAs.

The role of the attorney

Your attorneys cannot do whatever they like. They must follow the principles of the Mental Capacity Act 2005.  Principles of the Act that your attorneys must follow include: Your attorneys must assume that you can make your own decisions unless they establish that you cannot do so.  Your attorneys must help you to make as many of your own decisions as you can. They cannot treat you as unable to make the decision in question unless all practicable steps to help you to do so have been made without success. Your attorneys must make decisions and act in your best interests when you are unable to make the decision in question.

Your will

Even though your attorney can access plenty of information about you, they will not be able to access your will unless you have specified this in your LPA.
If your attorney needs to access your will to fulfil their role and does not have express permission from yourself to do so, they would need to apply to the Court of Protection to release the will. However, there is a charge for such an application.

Likewise, if your attorney needs to amend or create your will, but does not have the ability to do so, they have to apply to the Court of Protection for a statutory will.


Your attorney can sell your home if they believe it is in your best interests to do so, unless you have forbidden them from selling property in your LPA.


Your attorney can make a limited number of gifts from your money unless you restrict them from doing so. Gifts can only be made to relatives, or on special occasions such as Christmas, birthdays or weddings, and must be reasonable in relation to your wealth.

If your attorney wishes to make a gift for inheritance tax purposes, or for some other reason, they must apply to the Court of Protection for permission.

Disagreements with your attorney

Even if your LPA is registered with the Office of the Public Guardian (OPG) you can still make decisions for yourself if you have the mental capacity. You can also ask your attorney to support you on these decisions.  However, if your attorney acts on your behalf believing you lack the mental capacity to make decisions and you do not agree with the decisions, you have several options available. You can discuss your concerns with the attorney, revoke the LPA if you have the mental capacity and volition to do so or alternatively contact the OPG and ask them to investigate.

For more information on Property and Affairs Power of Attorney,  visit the Office of the Public Guardian website.

See also the Ministry of Justice and the progress in simplifying the application process with a faster secure digital registration process.  The full proposals can be viewed at: