When does a lasting power of attorney take effect in England and Wales?

Only on registration. Section 9(2)(b) of the Mental Capacity Act 2005 requires the instrument to be made and registered in accordance with Schedule 1, and section 9(3) provides that an instrument which purports to create a lasting power of attorney but does not comply with section 9, section 10 or Schedule 1 confers no authority. Schedule 1 requires the Public Guardian to register the instrument at the end of a prescribed period during which named persons and donees may object.

Does a Scottish power of attorney follow the same rules?

No. The Mental Capacity Act 2005 provisions on lasting powers of attorney extend to England and Wales. In Scotland a continuing power of attorney is granted under section 15 of the Adults with Incapacity (Scotland) Act 2000, which requires a written document subscribed by the granter, a statement clearly expressing the intention that the power be a continuing power, and a certificate by a practising solicitor or other prescribed person who interviewed the granter immediately before subscription, is satisfied the granter understands its nature and extent, and has no reason to believe the granter is acting under undue influence.

Has the Powers of Attorney Act 2023 changed how LPAs are made?

Not yet. Section 3 of that Act brought section 2, on certifying copies of a power of attorney, into force at the end of the period of two months beginning with Royal Assent, and provided that the remaining provisions come into force on such day or days as the Lord Chancellor may by regulations appoint. legislation.gov.uk records that section 1 was not in force at Royal Assent, so the Schedule's reforms to the lasting power of attorney process were still not operative as at 3 September 2026.

Power of Attorney in the UK

An English or Welsh lasting power of attorney confers no authority until it is registered with the Public Guardian: section 9(3) of the Mental Capacity Act 2005 says an instrument that does not comply with section 9, section 10 or Schedule 1 confers no authority. Scotland runs a separate regime under the Adults with Incapacity (Scotland) Act 2000, with its own Public Guardian and a mandatory solicitor's certificate.

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Governing law

Lasting powers of attorney in England and Wales are governed by sections 9 to 14 of and Schedule 1 to the Mental Capacity Act 2005. Continuing and welfare powers of attorney in Scotland are governed by the Adults with Incapacity (Scotland) Act 2000.

Mental Capacity Act 2005, s.9

What a power of attorney has to contain in the UK

An LPA covers the donor's personal welfare or property and affairs. It is created only where section 10 is complied with, the instrument is made and registered in accordance with Schedule 1, and the donor has reached 18 and has capacity when executing it. An instrument that does not comply confers no authority. The section extends to England and Wales.
Mental Capacity Act 2005, s.9
The instrument must be in the prescribed form, contain the donor's statement that the donor has read the prescribed information, contain a certificate by a prescribed person that the donor understands its purpose and that no fraud or undue pressure is being used, and name any persons to be notified of registration.
Mental Capacity Act 2005, Schedule 1
Registration is by the Public Guardian on application by the donor or the donee, after the named persons have been notified. The Public Guardian must register the instrument at the end of the prescribed period, during which named persons and donees may object on specified grounds, and may refuse registration where the instrument is not properly made.
Mental Capacity Act 2005, Schedule 1
In Scotland a continuing power of attorney must be in writing subscribed by the granter, incorporate a statement clearly expressing the intention that the power be continuing, and be certified by a practising solicitor or other prescribed person who interviewed the granter immediately before subscription. The certifier cannot be the attorney.
Adults with Incapacity (Scotland) Act 2000, s.15
The Powers of Attorney Act 2023 has not modernised the process yet. Section 3 brought section 2, on certifying copies, into force two months after Royal Assent, but the remaining provisions come into force only on days the Lord Chancellor appoints by regulations.
Powers of Attorney Act 2023, s.3

Form, notarisation and registration

legislation.gov.uk records that section 1 of the Powers of Attorney Act 2023, which introduces the Schedule making provision about lasting powers of attorney, was not in force at Royal Assent, see section 3(5).
Powers of Attorney Act 2023, s.1

What catches drafters out

Signing an LPA and filing it away unregistered. Until it is registered in accordance with Schedule 1 the instrument confers no authority at all, so the attorney cannot act when the need arises.
Mental Capacity Act 2005, s.9(3)
Using an English form for a Scottish granter. The Mental Capacity Act 2005 provisions extend to England and Wales, while Scotland requires the section 15 statement of continuing intention and a certificate from a professional who interviewed the granter immediately before subscription.
Adults with Incapacity (Scotland) Act 2000, s.15