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News & Articles

Osborne Morris & Morgan > News and Articles > Probate & Power of Attorney > Is it time for a Lasting Power of Attorney?

Is it time for a Lasting Power of Attorney?

Posted on 2 Apr 2019, in Probate & Power of Attorney

Power of AttorneyA person who loses mental capacity, either on a permanent or temporary basis, will be unable to make meaningful decisions for themselves, whether that is about their financial affairs, their medical needs, their living arrangements, or their safety. However, these decisions will still need to be taken by someone.

The best arrangement for this is to appoint someone as an Attorney by taking out a Lasting Power of Attorney (LPA). So, what exactly is an LPA, and when is the best time to arrange it?

WHAT is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that you can arrange while you still have mental capacity to ensure that your affairs will be looked after in your best interests, should you lose capacity or not wish to deal with your affairs anymore. This is most commonly associated with circumstances such as Alzheimer’s Disease, or other kinds of dementia. It can also apply to various other situations, such as suffering severe mental health problems, brain injury following an accident or disease, or a prolonged period of unconsciousness, such as a coma.

There are two types of LPA; Property and Financial Affairs and Health and Welfare. You can appoint as many Attorneys as you like and you can also appoint Replacement Attorneys. These can be the same people in both documents or you can choose different people if you wish.

An LPA must be set up at a time when you are considered capable of making complex decisions about your life and your welfare. If you lose mental capacity without having made this arrangement, you will be referred to the Court of Protection, who will appoint Deputies on your behalf.

While Deputies can cover the same duties as Attorneys, the process of setting up a Deputyship is considerably more complex and expensive. It is also subject to more stringent ongoing supervision, which can make it difficult for the Deputy to react quickly to your needs. In addition, there is no guarantee that the Court of Protection will appoint the people you would wish to have acting for you.

WHEN is the ideal time to set up a Lasting Power of Attorney?

Essentially, the earlier you set up an LPA, the better. It is often wrongly assumed that it is not needed until you are much older, but this is simply not true. As mentioned, Alzheimer’s is by no means the only cause for an LPA to be required, and in any case, Alzheimer’s can have an unexpectedly early onset. Anyone, of any age, could suffer as-a-result of an unfortunate accident and become seriously ill, or suffer an episode of severe mental illness or a stroke.

The later you leave it, the more likely that you will miss your chance.

If there is any doubt about your mental capacity at the time you wish to make arrangements, you will need confirmation of your capacity from a professional, and the decision may be that your capacity is not sufficient to make the LPA valid.

If it is a matter of setting up an LPA for yourself, there is no reason for any delay at all. If you are aware that an older relative (your parents, for instance) has not yet made arrangements, it is important to engage in the conversation of organising an LPA.

Setting up an LPA gives you control over choosing someone you trust to manage your affairs, should it become necessary. The alternative is to have the decision made by the Court of Protection. Although the court will do their best to make the right choice, they will obviously not know you well enough to be sure of achieving this.

Just like your Will, an LPA should be reviewed on a regular basis to ensure it is still relevant. Therefore, an arrangement made when you are in your twenties or thirties will be there if needed, but can be reviewed later to reflect your situation later in life.

Lasting Power of AttorneyWHEN does a lasting Power of Attorney need to be activated?

Before an LPA can be used by the Attorneys it has to be registered with the Office of the Public Guardian. We would suggest that your LPA is registered when it has been drafted and signed so that if your Attorney needs to step in quickly if you have a sudden decline in health, there is no delay in them acting for you. If the LPA is not registered when initially taken out, it takes 6-8 weeks to be registered which could cause your loved ones distress at an already difficult time.

The future is unpredictable, and so, in summary, the best time to set up a Lasting Power of Attorney is now- offering peace of mind for how your affairs will be managed should you lose mental capacity.

To speak to one of our Lasting Power of Attorney specialists, please call us on 01525 378177 or contact us online.
We looking forward to helping you.

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