Many people associate making a Lasting Power of Attorney (LPA) with getting older, and it often becomes one of those tasks you put off. However, if you are fit, healthy, and perfectly capable of managing your own affairs, it can easily get forgotten.
The problem is that none of us knows when we might need an LPA. An accident, serious illness or sudden change in health could affect your ability to make decisions for yourself, temporarily or permanently. If that happens before you put an LPA in place, your family cannot simply create one for you afterwards.
That is why an LPA is better thought of as a way of planning ahead rather than something you arrange when circumstances have already changed.
We have previously covered key reasons to make a power of attorney and how long it takes to make an LPA. In this blog, our Private Client team looks at what an LPA can cover, why age should not be the deciding factor, and what can happen if someone loses mental capacity without one in place.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more people you trust, known as your attorneys, to make certain decisions for you.
You (the donor) decide who you would like to appoint (the attorneys) and can set out instructions or preferences about how you would like particular matters to be handled.
There are two main types of LPA:
Property and financial affairs. This gives an attorney the power to make decisions relating to property and finances, including paying bills, selling a home, and managing bank accounts. Unlike a Health and Welfare LPA, a Property and Financial Affairs LPA can potentially be used while you still have mental capacity if you have given your attorneys permission to do so. This can be useful in circumstances where you remain capable of making your own decisions but need practical assistance managing your affairs.
Health and welfare. This enables an attorney to make decisions about your personal care and wellbeing, including decisions about medical treatment and care arrangements. You can also include details regarding receiving life-sustaining treatment, if you specifically give your attorneys authority to make those decisions. A Health and Welfare LPA can only be used when you are unable to make the particular decision yourself.
Anyone over the age of 18 who has mental capacity can make an LPA in England and Wales. Even if you are young and in good health, it is advisable to make one.
Am I Too Young to Need an LPA?
A guide on the importance of LPAs published by the Office of the Public Guardian (OPG) showed that “40% of people who say they are not interested in LPA don’t think they’ll lose capacity, don’t care, or don’t want to tempt fate”. Access the guide here: LASTING POWERS OF ATTORNEY – THE IMPORTANCE OF MAKING THE RIGHT CHOICE.
However, there is a simple problem with waiting until you feel “old enough” to make an LPA, as losing mental capacity is not restricted to later life.
Provided you are aged 18 or over and have the necessary mental capacity, you can make an LPA.
While conditions such as dementia are one reason someone may eventually need an attorney to act for them, they are far from the only one. A serious accident, stroke, brain injury or unexpected illness could affect someone at almost any stage of adulthood. The same OPG guide shared above highlights how “Every 90 seconds someone is admitted to hospital in the UK with an acquired brain injury”.
You may never need your attorneys to make decisions for you, but having the documents in place means that if circumstances unexpectedly change, the people you have chosen are able to step in.
Why Can’t I Make an LPA When I Need One?
Unfortunately, problems often arise when you wait until you need an LPA. To make a valid Lasting Power of Attorney, you need to have the mental capacity to understand the document and the authority you are giving to your chosen attorneys.
If you have already lost the capacity required to make an LPA, someone else cannot simply sign one on your behalf, even if they are your spouse.
At that point, your loved ones may need to apply to the Court of Protection to be appointed as your ‘deputy’ to act on your behalf. This can be expensive and is a lengthy process, often causing unnecessary delays and adding extra stress at an already difficult time.
For this reason, waiting until someone becomes unwell can be risky. There may still be time to put an LPA in place following a diagnosis, depending on the person’s capacity. However, you should not treat a diagnosis as the deadline for putting an LPA in place. The safer approach is to make these decisions while you can consider your options properly and choose for yourself who you trust to act on your behalf.
Doesn’t My Spouse or Family Automatically Make Decisions for Me?
This is one of the most common misconceptions we hear. Being married, in a civil partnership, or someone’s next of kin does not automatically give you the legal authority to manage all of their financial affairs or make every medical decision on their behalf if they lose capacity.
Without the appropriate legal authority, practical problems like paying bills, managing financial arrangements, or making important decisions about someone’s affairs can quickly arise.
An LPA allows you to decide in advance who should have that authority rather than leaving your family to deal with the issue after you have lost capacity.
What Happens If There Is No LPA?
If someone has lost mental capacity without an appropriate LPA already in place, you may need to apply to the Court of Protection for authority to make decisions on their behalf. For longer-term arrangements, the Court may appoint a deputy. There are two types of deputyships that mirror the types of LPA: property and financial affairs, and personal welfare.
However, the Court does not necessarily appoint a personal welfare deputy simply because someone has lost capacity. It is important to realise that a deputyship is fundamentally different from making an LPA. With an LPA, you choose who you would like to act for you while you still have the capacity to make that decision. With a deputyship, an application is made after capacity has been lost and it is the Court that decides whether a deputy should be appointed and the authority they should have. The deputy chosen on your behalf may not have been the person you would have chosen for yourself.
Another important factor is the time and cost implications. A Court of Protection application can involve considerably more administration and expense than planning ahead with an LPA. Appointed deputies can also be subject to assessment and ongoing supervision fees, and there may also be additional legal costs if professional assistance is required with the application.
More importantly, the Court of Protection process begins at precisely the point when a family may already be dealing with an accident, illness or significant change in a loved one’s circumstances.
Putting an LPA in place beforehand cannot prevent those difficult circumstances from occurring, but it can remove one potential legal complication if they do.
Lasting Powers of Attorney Solicitors in Alton
The only way to ensure your LPA is in place for when you need it is by making it in good time.
As we have covered in this blog, LPAs are not just relevant to older people. Capacity can be lost for various reasons, not just through dementia or old age.
Ensuring you have an LPA in place, even when you are in good health, reassures you that if you subsequently suffer an injury or illness that results in you losing capacity, you will be looked after by someone of your choosing.
LPAs can be made by anyone over the age of 18 who has mental capacity. Making an LPA doesn’t mean you use it straightaway – it only comes into effect when you need it to.
Using a Regulated Legal Professional
Although it is possible to complete the forms and register an LPA without legal help, creating a Lasting Power of Attorney can be complex. Mistakes can prove costly and cause significant delays to the application process.
The best way to ensure your LPA is made correctly and efficiently is to seek specialist legal advice from a solicitor with experience in Lasting Powers of Attorney.
At Bookers & Bolton, our Lasting Powers of Attorney lawyers in Alton, Hampshire, will guide you through the process practically and compassionately. We can help by drafting Lasting Powers of Attorney on your behalf or by completing the entire registration process.
Find out more about our powers of attorney legal service by clicking here.
If you haven’t made your LPA yet, get in touch with us today.
Get in Touch
If you would like further information or advice regarding our Lasting Power of Attorney services, please get in touch with us on 01420 558335, email us at enquiries@bookersandbolton.co.uk or make an online enquiry here.
We can also help you with Wills, Probate, Family Law, Conveyancing and Business Law services.
