A Lasting Power of Attorney (LPA) is a legal document which authorises a nominated person (or persons) to deal with your affairs if you are not able to. There are two types of LPA, one dealing with property and financial affairs and another for health and welfare.
Often people fail to make an LPA because of misconceptions about what one is and why it might be needed. Over the years we have heard:
- “My family will look after me, so I don’t need an LPA”
If you were to lose mental capacity and unable to manage your affairs, your partner (even if you are married or in a civil partnership) or your family would not automatically have the legal authority to manage your affairs without an LPA. They would not be able to access your bank accounts to pay your bills or make any financial or medical decisions for you. - “Our assets are in joint names, so we don’t need a LPA”
People are often surprised to hear that where you hold a joint account with your partner or another person and you lose capacity, the other account holder will not automatically retain the authority to manage the joint account. Routine things like standing orders or direct debits may be able to continue as they were authorised when you had capacity, however the account will otherwise be frozen. The other account holder will not be able to access the funds without someone who has legal authority (i.e. an LPA) to manage your affairs on your behalf. - “My next of kin can make health decisions for me”
“Next of Kin” is a legal term used to describe your closest living relative. They do not have legal authority to make health or medical decisions for you. A person appointed as your health and welfare attorney can coordinate with medical professionals about you and make decisions about your welfare when you are not able to. Without a health and welfare LPA, medical professionals are required by law to make decisions which they believe to be in your best interests even if these do not align with yours or your family’s beliefs. - “I have a Will, so I don’t need an LPA”
An LPA operates during your lifetime, allowing your appointed attorneys to make decisions about your health and welfare or manage your property and financial affairs (depending on which LPA they are appointed under). Your attorney’s authority will cease on your death, at which point the administration of your estate will be dealt with by your named executors in relation by way of your Will. - “LPAs are for the elderly”
You could lose capacity at any time for many reasons e.g. an accident, a stroke or being unconscious, by which time it could be too late to make an LPA. By putting an LPA in place earlier, it could prevent complications later. It is important to plan ahead and create the necessary legal documents, such as an LPA while you still have capacity. This ensures that someone you trust has the authority to manage your affairs and make decisions on your behalf if you are unable to do so yourself. If you do not have LPAs in place and you lose capacity, someone may need to apply to become your deputy through the Court of Protection. A deputy is appointed by the Court to manage your affairs when you’re incapable of doing so. The process is more time consuming and costly than having an LPA in place beforehand. - Registration of LPA’s
Unlike the old power of attorney document (Enduring Powers of Attorney), LPA’s cannot be used by attorneys until they have been registered with the Office of Public Guardian (OPG). This process should take between 12-14 weeks but is currently around the 4-5 month mark as demand for LPA’s have rocketed and the OPG struggle to keep up with demand. In order for a Lasting Power of Attorney to be valid and be used by the Attorney it must be registered. When a Property and Affairs LPA has been successfully registered it can be used immediately, with consent. With a Health and Welfare LPA, it can only be used when it is registered and the Donor has lost their mental capacity to make decisions, has difficulty doing day to day tasks, paying bills and so on. Furthermore, registering LPA’s as part of the process means that any mistakes or errors can be identified and corrected by the Court. If there is a delay in registering and it is found that there are errors, then the Donor might then no longer have the mental capacity to correct or make a new Lasting Power of Attorney.
Summary
It’s easy to put off making these important documents, but it’s crucial to have them in place. No one wants to think they’ll ever need Lasting Powers of Attorney, but the law doesn’t care if you think you have them automatically.
LPA’s are more about the people who have to deal with the aftermath, not about you having the right to make decisions about your spouse’s finances or health. If you don’t have LPA’s, the courts will have the power to make those decisions, which can cause a lot of stress and conflict for your loved ones.
Don’t wait until it’s too late. Take professional advice and be prepared. Capacity can be lost at any time or age, so it’s important to have these documents in place and registered correctly. We hope you never need them, but whoever has the authority will have the right to make decisions about everything you’ve worked for and anything that can happen to you whilst you are still alive.