Published 03rd December 2019 | Probate & Power of Attorney

Why you are never too young to arrange your Lasting Power of Attorney

LPAYou may already be aware of the importance of setting up a Lasting Power of Attorney (LPA) – in case you eventually become incapable of making decisions, for example, if you suffer from Alzheimer’s Disease. However, that would be many years in the future, so why should you need to make any plans yet?

In fact, it could not be further from the truth. It is never too early to arrange your Lasting Power of Attorney and many people do not know this.

What is a Lasting Power of Attorney?


A Lasting Power of Attorney (LPA) is a legal document that authorises one or more people to manage your affairs if you are medically considered to have lost the mental capacity to make important decisions for yourself or if physically you cannot, for example, sign documents. This is best set up at the same time as making your Will, but there is no reason why it cannot be done at any other time.

There are two types of LPA, covering Health and Welfare and Property and Financial affairs. You can opt for one or both of these, and you have the choice of appointing separate LPAs for these areas, or combine them. You may also choose to appoint a single person, or two or more people.

The person appointed as an LPA will usually be a family member or a close friend. However, you can choose anyone over eighteen to act as your LPA, providing they are willing to undertake the role. In some cases, you may choose to appoint a professional, such as a solicitor.

Why might a Lasting Power of Attorney be required?


An LPA is activated when it is registered at the part of the Court called the Office of the Public Guardian.  The most common reason for the use of an LPA is age-related dementia, such as Alzheimer’s Disease, but other reasons include:

  • an accident resulting in serious brain injury
  • an episode of serious mental illness
  • a serious illness that leaves you incapacitated
  • a stroke causing injury to the brain
  • an addiction serious enough to impair decision-making

You can choose whether your Attorneys act for you only when you have lost mental capacity (the ability to weigh up information and make informed decisions), or, you can choose for your Attorneys to act as soon as your LPA is registered, even if you still have your capacity. An example of this is if you became immobile or had a sight impairment and needed assistance in implementing decisions you have made.

Lasting Power of AttorneyWhen should you arrange a Lasting Power of Attorney?


Anyone over the age of eighteen is legally entitled to set up an LPA, providing that they are judged to have the mental capacity at the time. In England and Wales, this must be confirmed by either someone who is not a family member and has known you for at least two years, or else a professional such as a doctor or solicitor.

The crucial thing is that it must be done before you lose mental capacity. If this has already been judged to have happened, you will not be considered legally capable of making the necessary decisions to appoint an Attorney and the decision will be referred instead to the Court of Protection.

While the Court of Protection is a valuable safety-net for anyone who has failed to set up an LPA, it has a number of serious disadvantages. It can be an expensive and long-winded process, which will leave your affairs in limbo until the appointment of a Deputy is made. Also, while the Court of Protection will do its best to follow what it thinks your wishes would be, there is no guarantee that the person appointed will be the person you would have chosen.

By contrast, an LPA appoints Attorneys that are chosen by you and should be people who you trust and know you well and would carry out your wishes if you were to lose your decision-making ability.

Why might you require a Lasting Power of Attorney early?


As you will see from our list, by no means all causes of losing mental capacity are age related. Accidents, illnesses, addictions and mental health problems can occur at any age, while even strokes, though principally associated with older people, can happen at a younger age.

Even Alzheimer’s Disease is not solely an issue of old age. Early-onset Alzheimer’s has become better known since the well-publicised case of author Sir Terry Pratchett, but in rare cases it can strike even earlier than this. While it is extremely rare, Alzheimer’s has been known to strike people in their thirties.

While early-onset Alzheimer’s may well leave you with a window to set up your LPA before you lose capacity, an accident or serious illness can strike without warning. In the case of mental illness or an addiction, the early symptoms may lead to denial of the need for an LPA.

If tragedy strikes and you are left without mental capacity, without an LPA set up, you are likely to face serious difficulties. While the Court of Protection is contemplating your case, both your financial and welfare affairs may be left in limbo, just at a time when you most need decisions.

For instance, you may need specialist care or to move into long-term residential care. Without an LPA, no-one will be authorised to make that decision or to release the funds required to pay for it. Unless your family are able to fund you in the interim, you could be unable to access these services.

Similarly, any essential payments you need to make will be left unpaid, unless they are standing orders or direct debits previously arranged. Though creditors may well be willing to wait for a decision to be made, in extreme cases, this could result in stress and anxiety for your family.

To avoid the problems that can occur in losing capacity without having a Lasting Power of Attorney in place, contact our expert team of Power of Attorney specialists by calling 01525 378177 or contacting us online.

 

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