Bernadette Polkinghorne is a Lasting Power of Attorney specialist in Coodes Solicitors’ Wills, Probate and Trusts team. Here she outlines why it’s important to have a Lasting Power of Attorney and the two different types that can be put into place.
I often see clients who have concerns about the implications of setting up a Lasting Power of Attorney (LPA) and are unaware of the different types. Having a LPA offers security for you and your assets for the future. In the event that you are unable to manage your own affairs and make decisions through illness or accident, you can give one or more people the authority to do this for you.
An LPA gives someone else the legal authority to make decisions on your behalf. In the LPA, you can detail exactly what decisions your nominated person/s – known as your attorney – can or can’t make. You can also specify whether they make decisions together or if they can make decisions separately. An LPA allows you to maintain control over what happens to you and your assets if you lose capacity in the future.
An attorney can be anyone over the age of 18. They don’t have to live in the UK or be a British citizen but they do have to have the mental capacity to make decisions for themselves. An attorney can be a relative, friend, partner or a professional, such as a solicitor. When deciding who to choose as your attorney, consider:
You can have more than one attorney and you can also nominate other people to replace your attorney/s in the event of death, or if they can no longer act on your behalf.
There are two types of Powers depending on your needs. You can decide to set up both or just one.
A Property and Affairs LPA covers all aspects of finances, including your property, bank accounts, pension, investments and even matters such as dealing with benefit claims and liaising with utility companies. Once the Power of Attorney is registered with the Office of the Public Guardian, it can be used straight away if required.
A common concern raised by clients is that they will no longer be in control of their own finances once the LPA is registered. When setting up a financial LPA, there is an option for the attorney to start managing your affairs straight away, or only when you have lost the capacity to do so. Therefore, it does not mean that when the LPA has been registered you automatically are no longer in control of your finances.
You may wish for your attorney to assist you with certain matters or in certain situations, such as if you are hard of hearing or have impaired vision, but they can only assist with your permission.
The Health and Welfare LPA can only be used when a person is unable to make decisions for themselves. The attorney will have the responsibility of making decisions on day-to-day care, including eating and washing, as well as life-sustaining treatment.
Most people believe a next of kin or spouse would automatically have the power to make care and medical decisions on their behalf. In fact, if you want to ensure your wishes are carried out you should have a Health and Welfare LPA put in place. If you lose capacity to make decisions without having a Health and Welfare LPA, there is a risk your family would not know your wishes.
It is better to set up an LPA as early as possible, even if you currently have no signs of ill health. An accident or stroke can happen at any age and health can deteriorate quickly.
You must make a LPA while you have the mental capacity to make decisions and be 18 years or over. A LPA ensures that you get to choose your attorneys and decide on any preferences you wish them to carry out.
In the event that you lose capacity to make decisions and you do not have a LPA, it may be necessary to make an application to the Court of Protection to appoint a Deputy to make decisions on your behalf.
This process is a time consuming and costly exercise. It also means that it will be the Court determining who will be making decisions for you when you are in a vulnerable position. That is why it is extremely important to make a LPA as soon as possible to avoid this situation in the future.