The LPA Self-Audit: Is Yours Still Fit for Purpose?

An LPA is one of those documents you sign, register, and then forget. Registration takes 8-10 weeks. It goes in the drawer. Then it sits.

Except your life doesn't sit still. Attorneys move abroad. Children grow up. Marriages end. Businesses start. Section 5 assumptions age in ways you don't reread. Family relationships shift. By the time an LPA is actually needed, a hospital corridor, a stroke, a slow decline, the assumptions baked into it are often five or ten years out of date, and the moment you notice is the moment you can no longer change it.

Do the self-audit every three years, and whenever life changes. It takes fifteen minutes. Here's how.

1. Are your attorneys still the right people?

Are they alive? Sounds obvious. We regularly meet clients whose primary attorney has predeceased them and who never appointed replacements.

Are they in the country? An attorney abroad for more than a short period is not disqualified but is functionally hard to use, banks want signatures in person, care homes want someone available, HMRC letters go to a UK address.

Are they bankrupt or subject to a Debt Relief Order? A financial attorney who becomes bankrupt is automatically disqualified from acting under a financial LPA. If your primary attorney went through financial trouble at any point, check.

Have they lost capacity themselves? An attorney who has themselves lost capacity is no longer able to act. Common enough among older primary attorneys, a spouse, an ageing sibling. If your attorneys are within a decade of your own age, this is a live risk.

Is your relationship with them still what it was? An LPA appointing your ex-spouse is a real problem. Divorce automatically ends attorney appointments in a will but not in an LPA. Separation without divorce ends nothing.

Do they still want the job? Attorneys have to consent when they sign the LPA, but circumstances change. Have the conversation.

2. Are the replacement attorneys still viable?

The same questions apply to your replacements. Replacement attorneys are your safety net, they exist precisely for the case where a primary attorney can't act. If your replacements have themselves moved abroad, become unwell, or fallen out with you, the safety net is gone.

If you have no replacement attorneys, and you appointed your primary attorneys jointly (not jointly and severally), the LPA fails the moment one primary attorney can't act. Fix this now.

3. Are the powers still what you want?

Financial LPA: Section 5 (LP1F): can be used only when you've lost capacity, or from registration?

If you ticked "only when I've lost capacity" (Option B on the LP1F), your attorneys cannot act while you have capacity even if you would find it useful, for example, if you're travelling or in hospital short-term and want them to run the bills. Many donors, on reflection, prefer the alternative. It's not paranoia to give attorneys immediate power; you still have to have lost capacity for them to be required to act, and they remain under all the fiduciary duties throughout.

Health & Welfare LPA, Section 5 (LP1H): Option A or Option B on life-sustaining treatment?

Have your views moved since you signed? A diagnosis, a family experience, a change in faith position, a specific treatment you have thought harder about, any of these can shift what you want. You cannot amend Section 5 in an existing LPA; you'd make a fresh LP1H, which would revoke the old one. Worth doing if your view has changed.

Preferences and instructions in Section 7. Do they still reflect what you want? Instructions to attorneys about how to invest your money, whether to sell the house, who to consult before major decisions, do the specifics still track?

4. Do you have all the LPAs you should have?

• Personal LP1F, most people who did their LPA planning did this one. Check you still have a copy.
• Personal LP1H, many people didn't do this one. If you don't have one, you should. The health and welfare LPA is the one that governs care decisions if you lose capacity, and without it your family has no legal standing to act, best-interests decisions go to the treating clinician.
• Business Owner LPA, if you have started or acquired a business since your LPA was made, or become a director of one, you probably need one. See our Business Owner LPA post.
• Advance Decision, separate from an LPA, this is your voice in writing on specific treatments you would refuse. Most people with an LP1H benefit from an ADRT alongside; see the LPA vs Advance Decision post.

5. Is the OPG's copy the same as your copy?

The Office of the Public Guardian holds a register of all registered LPAs. If your LPA has been changed, revoked, or superseded, the register should reflect it. If you've moved house since registration, updating your address with the OPG is a good idea so their correspondence reaches you.

You can check what the OPG has on the LPA register at gov.uk.

6. Do the right people know it exists, and where?

An LPA in a drawer no one can find in a crisis is worth about as much as no LPA at all. Tell your attorneys:

• That the LPA exists.
• That it has been registered.
• Where the original is kept.
• Who your GP is (relevant for the LP1H).
• Where any Advance Decision or ReSPECT plan is kept.

If we drafted your LPA, we hold a copy in the Bonsai Law vault, free of charge for retained clients. Your attorneys can retrieve it from us on production of ID and evidence you have lost capacity.

What to do if the audit throws something up

Small changes (address of the donor, address of an attorney, telephone number): notify the OPG. No new LPA required.

Adding or removing an attorney, changing how they act, changing preferences or instructions, changing Section 5 (LP1H): these all require a fresh LPA. There is no such thing as amending a registered LPA. The new LPA revokes the old one by including express revocation wording. The fee is £82 to register the fresh LPA; we can do the drafting quickly, and the OPG timeline is the same 8-10 weeks.

Revocation without replacement: if you want to revoke an LPA and not replace it (unusual but sometimes appropriate), a formal deed of revocation notified to the OPG and to your former attorneys.

You suspect capacity is on the way out: don't wait. The window in which you can make or change an LPA closes the moment you lose capacity. If in any doubt, get instructions taken quickly, and, if capacity is genuinely in question, we can arrange a medical capacity assessment that protects the LPA against later challenge.

The pattern

LPA planning is not a one-off. It's a maintenance job. The donors we see hurt most are the ones who did the work in 2015 and left it there, and whose 2015 attorneys are no longer available, whose 2015 assumptions no longer fit, and whose 2015 selves would be surprised by what the document now says.

Set a calendar reminder. Every three years. Fifteen minutes. If we drafted your LPA, we'll email you the reminder for free.

Related reading on this site: - Our LPA service → - LPA vs Advance Decision → - The Business Owner LPA → - Five reasons the OPG rejects LPAs →

Sources: - Mental Capacity Act 2005 (legislation.gov.uk) - Office of the Public Guardian, power of attorney register - Office of the Public Guardian, changing or revoking an LPA

This post is general information and not legal advice.