Why Do We All Need Them?
A Lasting Power of Attorney (LPA) is a legal document which allows you to appoint a person or people of your choice to act and make decisions on your behalf should you want or need their help. There are two types of LPA – one for your property and financial affairs and another to cover your health and welfare.
A property and financial affairs LPA allows your chosen Attorney(s) to deal with your finances or property as if they were you. For example, they could access your bank accounts, pay your bills and buy or sell property on your behalf.
A health and welfare LPA covers your medical treatment and personal welfare. Your Attorney(s) can speak to medical professionals on your behalf regarding proposed treatments and speak for you in relation to your daily routine (where you live, what you eat, what you wear, etc). Your Attorney(s) can also make the final decision in relation to life-sustaining treatment, such as cancer treatment, life support and resuscitation, but only if you choose to give them this authority.
Due to the personal nature of these documents, it is always important to choose Attorneys who you trust and often these are the people who know you the most. You can discuss your wishes and beliefs with your Attorneys in case they ever need to act on your behalf (and often it is family members who understand what you would want to happen anyway). If you would prefer to leave more detailed instructions for your Attorney(s), the documents enable you to do this.
You can rest assured that you are in safe hands, with people of your choice able to act on your behalf to fulfil your wishes if needed.
But why do we need them?
It is commonly thought that a family member or loved one is automatically legally entitled to make decisions on your behalf if you lose the capacity to make those decisions yourself. This is not the case. Even a spouse or civil partner does not automatically have power of attorney to act for you.
Less than 50% of the UK population has a Will in place but this is still significantly higher than the number of people with LPAs, with less than 15% of the UK population having some form of LPA in place. Whilst your Will sets out your wishes and how your assets should be distributed after your death, LPAs allow your Attorney(s) to make decisions for you during your lifetime. This is why it is important to have LPAs in place as well as a Will.
What happens if I lose capacity without having LPAs in place?
Some people may never make use of their LPAs if they are fortunate enough to retain capacity throughout their lifetime. However, none of us can predict what will happen in the future and the last few years have certainly highlighted how unpredictable life can be. LPAs can, therefore, be seen as a form of insurance to protect against a risk that may or may not happen; the risk that we could lose physical or mental capacity.
For a person to put LPAs in place, they must have the mental capacity to sign the document (this is the same for a Will). If you lose capacity but you do not have LPAs in place, it is still possible for someone to be appointed to act on your behalf but the process is much more complex and expensive than putting LPAs in place from the outset. This alternative process is called a Deputyship application.
What is a Deputyship application?
This is an application made to the Court of Protection. The person applying (usually a loved one or family member) will ask the Court for an Order authorising them to act as deputy for the person who has lost mental capacity, allowing them to act and make decisions on that person’s behalf. This is likely to be a stressful and lengthy process for the family at a time when they are already experiencing the grief of a loved one losing mental capacity.
Am I too young to make a LPA?
Another common misconception surrounding LPAs is that they are primarily for older people. Around 50% of those who make an LPA are over 75 years old. It is important to understand that these documents can be made by anyone with mental capacity over the age of 18 and they are not just for older people.
Around 38% of people suffering strokes are middle aged (40-69 years old) – up from 33% a decade ago – so it is not just elderly people who lose capacity.
A LPA for Property and Financial Affairs can be used by your chosen Attorney(s) as soon as the document is registered (if you choose this), even if you have not lost mental capacity. So, for instance, if you were to break a leg and need help with day-to-day things, so only your physical capacity is impacted, your friend or family member may be unable to go to the bank for you, even if the need for help is temporary while you recover. A Property and Financial Affairs LPA might be needed in this situation, even though you have full mental capacity.
If you would like to arrange an appointment to discuss Lasting Powers of Attorney, or anything else in relation to Wills & Estate Planning, please contact our team on 01256 320555 or email mail@clarkeandson.co.uk
