Health and Welfare LPA vs Property and Financial Affairs LPA: Do You Need Both?

If you're considering Lasting Powers of Attorney (LPAs), you will have seen there are two different types: a Health and Welfare LPA, and a Property and Financial Affairs LPA. It's tempting to assume they're two versions of the same thing, or that you don't need both. It is important to realise they do quite different jobs, and relying on just one can leave a significant gap.

Two LPAs, two very different jobs

What a Property and Financial Affairs LPA covers

A Property and Financial Affairs LPA allows your chosen Attorney to make financial decisions on your behalf. Your Attorney can manage your finances including, amongst others, things like:

• paying your bills
• opening and closing your bank accounts
• collecting your pension or benefits
• investing your money
• dealing with utilities, DWP and HMRC
• paying for your care
• and, if needed, selling your home

Your Attorneys cannot sign your Will, only you can do that. Your Attorney also has very limited power to make gifts on your behalf.

A Property and Financial Affairs LPA can be used when you have lost capacity, but you can choose for your Attorney to be able to use the LPA even when you still have mental capacity. This can be particularly useful to have in place as you get older or in case you ever were to become unwell.

This is the LPA most people think of first, because it's the one with the most obvious practical, day-to-day relevance.

What a Health and Welfare LPA covers

A Health and Welfare LPA is different. It can only ever be used if you have lost mental capacity to make medical decisions. If you were to lose mental capacity, your medical Attorney can make decisions about your medical care and daily welfare including, amongst others, things like:

• what treatment and medication you receive
• where you live: whether to remain in hospital, return home or move into a care setting
• the right to see your medical notes
• whether to consent or refuse consent to life sustaining treatment

Why people often only set up one

In practice, the most pressing worry for people is often financial. There are horror stories of people who had nothing in place and then lost mental capacity. It can cause real difficulty if no financial LPA is in place. With access to money frozen, care gets very expensive very quickly.

Even without the full loss of mental capacity, getting older can make even day to day financial transactions harder. It can be harder to hear on the phone, harder to understand modern technology, harder to remember passwords and pin numbers and harder to get physically into the bank. There is an obvious practical advantage to having a financial LPA in place allowing your Attorney to handle such things as and when needed.

The Health and Welfare LPA, by contrast, often gets left out. The need is less pressing and less obvious. After all, there are many people in hospitals all over the country with no medical LPA in place.

What happens if you only have one

This is where the gap becomes real. If you only have a Property and Financial Affairs LPA and you later lose capacity, your Attorney can step in and manage your finances, but has no legal authority to decide your care or medical treatment. Instead, medical and care decisions would be made by the professionals involved (such as your GP or hospital). They would make their decisions about your care based on what they believe to be in your "best interests". They would likely consult with your family, but the family and clinicians might not agree. Or the doctors might not give sufficient weight to the opinion of the person you feel would best speak for you. Your financial Attorney could find themself with the power to pay for care which they don't agree with.

If you only have a Health and Welfare LPA, the reverse problem applies. Your Attorney could make decisions about where you live and what care you receive. But they would have no authority over your bank accounts, and no ability to pay for that care directly from your funds. That would need a separate application to the Court of Protection, which is often costly and time consuming.

So, do you need both?

For most people, to fully future proof your plans, it is best to have both. The two LPAs cover different (but equally important) areas of your life, and neither one substitutes for the other.

If longer term care were needed, it can be extremely useful to have both in place so that your Attorney can decide what care you receive and where and can also manage the paying for that care. Having both means the person you trust most can support you across every aspect of your affairs, rather than being fully in control in one area and legally powerless in another.

There's also a practical point worth making: you can appoint different people as the different Attorneys. Including more than one person in either role can help share the burden and also support and reassure each Attorney when they are making decisions for you.

It is also worth knowing what happens if you have no LPA at all. If you decide to put both in place, our guide on how to make an LPA takes you through the steps in order. Our pricing page sets out the cost of one LPA or both. A solicitor on our team checks every LPA before you sign it.

This article is for general information and is not legal advice. If you are deciding which Lasting Powers of Attorney to put in place, or what powers to give your Attorneys, please get in touch for advice on your own situation.

Sources

• Section 9 of the Mental Capacity Act 2005 on legislation.gov.uk. Creates the LPA and allows it to cover personal welfare, property and affairs, or both. An LPA is only created once the instrument is registered.
• Section 11 of the Mental Capacity Act 2005 on legislation.gov.uk. A personal welfare LPA "does not extend to making such decisions in circumstances other than those where P lacks" capacity, and does not cover life-sustaining treatment "unless the instrument contains" express provision.
• Section 12 of the Mental Capacity Act 2005 on legislation.gov.uk. Limits an attorney's power to make gifts to customary occasions and to charities, and only where the value is not unreasonable given the size of the estate.
• Section 1 of the Mental Capacity Act 2005 on legislation.gov.uk. Anything done for a person who lacks capacity "must be done, or made, in his best interests". Section 4 sets out how best interests are worked out.
• Section 16 of the Mental Capacity Act 2005 on legislation.gov.uk. The Court of Protection's power to make decisions or appoint a deputy where someone lacks capacity. Section 18(1)(i) reserves "the execution for P of a will" to the court.
• Make a lasting power of attorney on GOV.UK. Confirms a health and welfare LPA "can only be used when you're unable to make your own decisions", while a property and financial affairs LPA "can be used as soon as it's registered, with your permission".