How To Plan For Illness & Old Age

Summary

Planning ahead for illness and old age means putting a Lasting Power of Attorney in place. At the same time, you still have mental capacity, making an advance decision if you have clear views about future medical treatment, and understanding how care fees are assessed. The OPG charges £92 to register each LPA. If you do nothing and later lose capacity, your family will face a costly and time-consuming deputyship application to the Court of Protection. There is currently no cap on lifetime personal care costs in England; anyone with assets above £23,250 must fund their own care in full.

A Lasting Power of Attorney (LPA) is the single most effective step you can take to ensure that someone you trust can manage your property, finances, and healthcare decisions if you lose mental capacity; the current OPG registration fee is £92 per LPA (from 17 November 2025).
There are two types of LPA: one for property and financial affairs, and one for health and welfare; most people need both, and each must be registered with the Office of the Public Guardian before it can be used.
The Mental Capacity Act 2005 provides the legal framework governing all decisions made on behalf of people who lack capacity, including LPAs, advance decisions, and deputyships; it requires that any decision made for someone who lacks capacity must be in that person’s best interests.
An advance decision to refuse treatment is legally binding on healthcare professionals under the Mental Capacity Act 2005, provided it is valid and applicable; for refusals of life-sustaining treatment, it must be in writing, signed, and witnessed.
If you lose capacity without having made an LPA, a family member or other person must apply to the Court of Protection for a deputyship order, which currently carries an application fee of £421 and typically takes six to seven months; the planned £86,000 lifetime cap on personal care costs under the Care Act 2014 was cancelled by the Chancellor on 29 July 2024, so the current care funding system, with an upper capital limit of £23,250, remains in force for England.

Losing mental capacity through dementia, a stroke, or serious illness can happen at any age, and it leaves families unable to manage finances, pay care fees, or make medical decisions without formal legal authority. An LPA, made while you have capacity, prevents that situation entirely. Without one, even a spouse or adult child has no automatic legal right to operate your bank account or consent to medical treatment on your behalf.

The consequences of doing nothing are significant and often irreversible. If capacity is lost before an LPA is in place, the only route is a deputyship application to the Court of Protection, a process that takes months, costs considerably more than an LPA, and subjects the appointed deputy to ongoing supervision. For clients in Arnold and the wider Nottingham area, Smalleys Solicitors can prepare both types of LPA and guide families through the process at the earliest opportunity.

Lasting Powers of Attorney

Lasting Powers of Attorney were introduced by the Mental Capacity Act 2005 and replaced the older Enduring Power of Attorney. There are two distinct LPAs.

The first, a property and financial affairs LPA, authorises the attorney to manage bank accounts, pay bills, sell property, and deal with investments. Unusually, it can be used by the attorney while the donor still has capacity, if the donor wishes. However, this requires careful thought about the degree of trust involved.

The second, a health and welfare LPA, covers decisions about medical treatment, care arrangements, and where the donor lives. It can only be used once the donor has lost the capacity to make the specific decision in question. You can expressly authorise your attorney to give or refuse consent to life-sustaining treatment; if you do not include that authority, your attorney cannot exercise it.

Both LPAs must be executed on the prescribed form, certified by a suitable certificate provider, and registered with the Office of the Public Guardian before they can be used. Registration currently costs £92 per LPA, a fee that came into effect on 17 November 2025 under the Office of the Public Guardian’s revised fee schedule. For most people who register both types, the combined OPG fee is £184. Fee exemptions and remissions are available for those on low incomes or certain benefits.

The Powers of Attorney Act 2023 received Royal Assent on 18 September 2023. It amends the Mental Capacity Act 2005 to allow the OPG to introduce a digital LPA system, including online applications, identity verification, and hybrid paper-and-digital processes. The new digital service is under development and testing; the current paper-based system remains valid and fully operational.

An attorney must always act in the donor’s best interests, as required by section 4 of the Mental Capacity Act 2005, and must have regard to the donor’s past and present wishes, beliefs and values. The OPG supervises attorneys and can investigate concerns about misuse or abuse.

Consider a Nottingham resident in her sixties whose mother has recently been diagnosed with early-stage dementia. If the mother acts now, while she retains capacity, she can appoint her daughter as attorney under both types of LPA. If she delays and loses capacity before the forms are executed, no LPA can be created and the daughter will have to seek a deputyship order instead.

Advance Decisions to Refuse Treatment

An advance decision to refuse treatment, sometimes called a living will, allows you to record in advance that you refuse a specific medical treatment in specific circumstances, so that your refusal takes effect if you later lack capacity to make that decision. Under sections 24 to 26 of the Mental Capacity Act 2005, a valid and applicable advance decision is legally binding on healthcare professionals; it carries the same weight as a contemporaneous refusal made by a person with capacity.

For most treatment refusals, an advance decision does not need to be in writing. However, a written document is strongly advisable for clarity. For refusals of life-sustaining treatment, the statute imposes stricter requirements: the document must be in writing, signed by you, signed by a witness, and must include a statement that the refusal applies even if your life is at risk. If these formalities are not met, the refusal of life-sustaining treatment will not be legally binding.

An advance decision does not allow you to demand a particular treatment; it can only be used to refuse treatment. Healthcare professionals are not required to provide treatment simply because you have requested it in advance. If you have made a health and welfare LPA and granted your attorney authority to refuse life-sustaining treatment, that authority takes precedence over an earlier advance decision on the same matter.

It is good practice to review an advance decision periodically and to ensure your GP, family, and any involved healthcare professionals know of its existence and can locate it. There is no registration system for advance decisions and no fee for making one, though you may wish to take legal advice on the wording to ensure it is valid and precise.

Deputyship When No LPA Exists

If a person has already lost mental capacity and has not made an LPA, the only way for another person to gain legal authority to manage their affairs is through a deputyship order from the Court of Protection. A deputyship under the Mental Capacity Act 2005 can cover property and financial affairs, personal welfare, or both. Most applications are for property and financial affairs, since welfare decisions are usually made through best-interests consultations with professionals rather than through formal orders.

The application requires a capacity assessment from a GP or consultant, completion of Court of Protection forms (including COP1, COP3, and COP4), and payment of the current application fee of £421. If the court decides a hearing is needed, an additional fee of £259 will apply. After an appointment, a property and financial affairs deputy pays an annual supervision fee of £320 to the OPG, with a reduced fee of £35 for minimal supervision where the person’s assets fall below £21,000. New deputies also pay a one-off assessment fee of £100.

The process typically takes six to seven months and involves notifying the person lacking capacity, certain family members, and any other persons named in the application. Deputies are subject to the OPG’s supervision throughout the deputyship and must submit annual reports. In contrast, an LPA, once registered, requires no annual reporting to the OPG and can be put in place for a fraction of the overall cost.

For anyone who has not yet made an LPA, the message is clear: the time to act is while you have capacity. Smalleys’ wills, estates and trusts team can prepare and register LPAs on your behalf.

Care Fees and NHS Continuing Healthcare

Understanding how care fees are funded is an important part of planning for old age. Under the Care Act 2014, local authorities carry out a needs assessment and, if a person has eligible care needs, a financial assessment.

If your assets, including savings and, for permanent residential care, the value of your home, exceed £23,250 (the upper capital limit for 2025 to 2026, confirmed by the government circular issued in February 2025 and unchanged since 2010), you must fund your own care in full. If your assets fall between £14,250 and £23,250, you contribute a means-tested amount from your capital; if they fall below £14,250, capital is disregarded, and you pay only from income.

The planned £86,000 lifetime cap on personal care costs, which had been a feature of the Care Act 2014 but was never commenced, was formally cancelled by the Chancellor on 29 July 2024. The current Labour government announced it would not take forward the charging reforms inherited from the previous administration. As a result, there is presently no limit on the total amount a person may be required to spend on personal care over their lifetime. Anyone advising a client who was anticipating a cap coming into force must disregard that expectation entirely.

A separate funding route exists for people whose care needs are primarily health-related rather than social care needs: NHS Continuing Healthcare. This is a package of ongoing health and social care arranged and funded solely by the NHS for adults with a primary health need arising from disability, accident, or illness. It is not means-tested; eligibility depends entirely on the nature and complexity of the person’s health needs, assessed against the National Framework for NHS Continuing Healthcare. Where NHS Continuing Healthcare is awarded, the NHS pays the care home fees in full. If it is not awarded, but nursing care is needed, the NHS pays a flat-rate NHS-funded nursing care contribution towards the nursing element of a registered nursing home’s fees.

Property held jointly with another person is treated differently from solely owned property in a financial assessment. A property held as joint tenants passes automatically to the survivor on death and does not form part of the estate; a property held as tenants in common gives each owner a defined share that does pass through the estate and is taken into account in a care funding assessment. Reviewing the basis of property ownership is part of wider wills and estate planning that should be considered alongside LPA preparation.

Frequently Asked Questions

Can I make an LPA with early-stage dementia?

Yes, provided you still have mental capacity to make the LPA at the time of signing. Capacity under the Mental Capacity Act 2005 is decision-specific and time-specific; a diagnosis of dementia does not automatically mean you have lost capacity. The certificate provider’s role is to confirm that you understand the LPA, are not being pressured, and have the capacity to execute it. It is advisable to act promptly, as capacity can fluctuate and may deteriorate.

What happens to my LPA if I die?

An LPA automatically terminates upon the donor’s death. After death, authority to deal with the estate passes to the executors named in the will, or to administrators appointed under intestacy rules if there is no will. Attorneys under an LPA have no authority after death. If you have not made a will, your estate is distributed under the intestacy rules rather than according to your wishes.

Does an LPA replace an advance decision?

No. A health and welfare LPA appoints an attorney to make decisions on your behalf once you lack capacity; an advance decision records your own refusal of specific treatments in advance and binds healthcare professionals directly without the need for an attorney. The two instruments can coexist, but if an attorney is given authority over the same matter as an advance decision, the LPA takes precedence if it was made after the advance decision. Taking advice on how the two documents interact is sensible when making both.

Can my home be sold for care costs?

Not necessarily, and not immediately. There are important protections. Your home is disregarded in the financial assessment for care fees. At the same time, a spouse, civil partner, or certain other dependents live in it. If you enter care as a single person, your home may be taken into account, but deferred payment agreements allow you to defer the costs secured against the property so that no sale is required during your lifetime. The capital limits apply to assets at the time of assessment.

How long does LPA registration take?

Under the current paper-based system, registration with the OPG typically takes several weeks to a few months once all parties have signed. Delays commonly arise from errors in the forms, which are returned for correction, adding significant time. Working with a solicitor to prepare the forms reduces the risk of defective applications. The Powers of Attorney Act 2023 is expected to enable a digital system that will substantially reduce registration times, but the new service had not fully launched as of the date of this article.

About the Author

This article was written by Deanne Taylor (SRA number 162250), Head of Wills and Probate at Smalleys Solicitors. Deanne qualified as a solicitor in 1993 and has practised in private client law for over thirty years. She was made Partner at Smalleys in 1996, initially heading the Family Department before specialising in wills, probate and estate planning in 2000. Deanne is a member of the Private Client Law Society and of Lifetime Lawyers, the national organisation for solicitors who specialise in advising older and vulnerable clients. She is a regular speaker at events for older people across Nottinghamshire. Smalleys Solicitors is regulated by the Solicitors Regulation Authority under SRA number 639164.