It is an unfortunate reality that many people may find themselves in a position whereby they are not able to make decisions for themselves. Should this happen, it falls to third parties (particularly family members) to look after you. This may be harder than it initially appears. Due to strict Data Protection and anti-identity theft laws, the relative that is looking after you may find it difficult, if not impossible, to help you manage your finances, deal with property and even ensure that your wishes about your health care are followed. Luckily, there is a way around these problems and that is the Lasting Power of Attorney (‘LPA’).
What is an LPA?
An LPA is a document by which you can designate a third party as your “attorney”. You essentially give your attorney legal authority to deal with your affairs. Exactly what authority you grant them depends upon the type of LPA that you create. There are two types of LPA; the Financial LPA and the Health & Welfare LPA.
The Financial LPA grants your attorney the authority to deal with your finances. This involves contacting and dealing with Banks, Mortgage Companies and confirming property transfers. The Health & Welfare LPA grants your attorney authority to make decisions about your medical treatment and how you will live.
The Financial LPA is considered to be very important, as anyone seeking to care for you will very quickly realise that institutions such as banks will simply not deal with them unless they hold the records of legal authority. The Health & Welfare LPA can be useful, particularly if you have particularly strong views over how you would wish to be treated medically or how you would wish to live. It is important to stress that, while medical professionals making treatment decisions on your behalf will always take the view of your next of kin into account, they are not legally bound to follow the views or the wishes of your next of kin. The Health & Welfare LPA resolves this dilemma.
Should I create an LPA?
It is a common misconception that LPAs are only for people in the process of losing their mental capacity. It is important to stress that you can only create an LPA when you still have full capacity. Once capacity is lost, it is impossible to create an LPA. This will leave your relatives forced to make an expensive and lengthy application to the Court of Protection to be appointed as a Deputy. It is therefore important to act promptly if you believe that you may find yourself in a position where you will lack mental capacity.
It is also a general misconception that Powers of Attorney are only for elderly people. While it is true that people will usually not face diseases such as Dementia or Alzheimer’s (which are the most common causes of loss of capacity) until old age, there is always the possibility that a younger person may find themselves in a situation where they lack capacity. It is therefore important that people regularly consider whether it would be appropriate create an LPA.