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Published 20th March 2018 | Probate & Power of Attorney

Why have a Lasting Power of Attorney?

Lasting Power of Attorney

No-one can predict what is going to happen to them. While we don’t like to dwell on disasters that may not happen, it is crucial to take sensible precautions, both for our own sake and for our family.

Hopefully you will have an up-to-date Will arranged, but have you considered setting up a Lasting Power of Attorney? If not, there are many reasons why you should.

What Is a Lasting Power of Attorney?

Lasting Power of Attorney (LPA), which succeeded the similar Enduring Power of Attorney in 2007, makes provision for someone to manage your affairs on your behalf.

There are alternatives to an LPA for someone who is already lacks capacity, but only through a difficult and complex procedure. On the other hand, it is fairly straightforward to draw up a legal document now, while you are capable, specifying who you want to act as your Attorney if it becomes necessary.

LPA’s are usually associated with an elderly person with conditions such as Alzheimer’s Disease. However, a younger person at any time could suffer a serious physical or mental illness which makes decision-making more difficult.

Many decisions may need to be taken on your behalf if you are incapable, temporarily or permanently. These are generally divided into two types – LPA for Property and Financial Affairs and LPA for Health and Welfare.

LPA for property and financial affairs

An LPA for Property and Financial Affairs empowers the Attorney to manage your finances and assets.. This may involve paying mortgages and bills and collecting wages, pensions and benefits on your behalf. They can also invest money and buy or sell property for you, as well as arranging property repairs.

Your Attorney will normally take over the decision-making when you become incapable of doing so, but that isn’t automatically the case. If, for example, you are battling cancer or finding it difficult to keep on top of your affairs as you grow older, you may prefer to pass the burden to someone you trust. In these or similar cases, you can choose to activate the LPA even when it is not strictly necessary.

LPA for health and welfare

Unlike an LPA for Property and Financial Affairs, an LPA for Health and Welfare can only be activated if you’re medically judged to have lost capacity. This type of Attorney is specifically tasked with making decisions on your behalf about your health and living arrangements.

The types of decisions an Attorney for Health and Welfare might need to make include where you will live (for instance, at home or in a residential home) and what you will be able to do on a day-to-day basis. The Attorney will also be able to arrange your ongoing medical care and diet, including whether or not to accept life-sustaining treatment.

Who can act as your Attorney?

Theoretically, you can choose anyone over the age of eighteen as your Attorney, as long as they agree to be named. In practice, it is important to appoint someone you can trust, as they will have to make potentially life-changing decisions on your behalf. It is normal to appoint a partner, a family member or a very close friend, although you may prefer a professional representative.

You can appoint one Attorney or many. Your Attorneys for Property and Financial Affairs and for Health and Welfare can be the same person, but you may prefer to split the burden between two people. Similarly, you could choose to appoint several Attorneys.

If you have more than one Attorney, you can also choose whether they can act independently or whether a consensus is required. It’s advisable to discuss this in detail with your solicitor.

When can you set up an LPA?

An LPA can be set up at any time after the age of 18, but with the risk that the need for an Attorney can strike at any time and age, the sooner you make the arrangements, the less likely it is that you will be left without provision.

If you have LPAs for health and for finances they can be set up at the same time, or separately, although it may be cheaper to establish both at the same time. In this case, you will still need to make two separate applications.

An LPA should not be put away and forgotten, however, especially if you have made it while still relatively young. A lot could happen over the years, both for yourself and for your Attorney. LPAs, like Wills, need to be reviewed on a regular basis and changed if necessary.

What happens if you don’t have an LPA?

If you lose capacity without having set up an LPA, whether in old age or through a life-changing illness or injury, it can cause problems. Even if you have a partner or family members, they cannot access your sole bank account or give medical consent for you.

Instead, an application would have to be made to the Court of Protection for a Deputyship. This is far more-costly than an LPA, and even more importantly, it takes a long time.

In the meantime, no decisions can be made. If you require permanent residential care, for instance, your home may need to be sold or rented out, and no-one will have the power to organise this. Difficult decisions may have to be taken about your medical care, and these must be referred to the Court of Protection. By the time a decision can be taken, it could be too late.

We can help

Setting up a Lasting Power of Attorney involves some minor hassle and expense, but nothing like the consequences of not having it in place. Please get in touch with us at Osborne Morris & Morgan to discuss the process — because, just like making a Will, preparing for the worst means you can forget about it and enjoy your life.

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