The Importance of a Lasting Power of Attorney

by | Jul 22, 2022 | Blog Posts

The Important of a Lasting Power of Attorney

| What is a Lasting Power of Attorney?

A lasting power of attorney (LPA) is a legal document that lets you appoint one or more people as an ‘attorney’, who have the power and authority to help you make decisions on your behalf if you lack mental capacity and can’t do it yourself.

An LPA provides protection to you and allows important decisions to be taken if you are unable to make choices for yourself, for example if you have an accident or an illness and lack the ‘mental capacity’ to do so.

| Types of Lasting Powers of Attorney

There are two types of LPA:

  • health and welfare
  • property and financial

Health and Welfare LPA

A Health and Welfare LPA allows your attorneys to make personal decisions on your behalf, but it can only be used if you lack mental capacity to do so yourself. This could range from your daily routine, washing, dressing, eating and medical care to life-sustaining treatment (for example putting a ‘Do Not Resuscitate’ (DNR) in place).

Property and Financial LPA

A Property and Financial LPA allows your attorney to deal with any property and finances you might have. This may include managing a bank account, paying bills or selling your home. Unlike a Health and Welfare LPA, a Property and Financial LPA can be used by your attorneys (with your consent) when you have the capacity.

What legal rights does your next of kin have?

A common misconception is many assume that your spouse or civil partner automatically has a legal right to make any decisions on behalf of you if you do not have the capacity to make them for yourself. This is not the case. Your spouse, civil partner, or child do not have any legal right to make any decisions about your affairs. Therefore, it is important to have a Lasting Power of Attorney in place.

So why should you have a Lasting Power of Attorney in place?

If you do not have an LPA in place, the court, also known as the Court of Protection, will appoint you a deputy to make decisions on your healthcare or finances on your behalf. This is known as applying for deputyship and this can be a very costly and timely process.  Any jointly held assets may not be able to be sold until deputyship is secured and further complications could arise if a deputy’s application is refused by the court. Having an LPA in place can provide comfort, reassurance and support for you and your family. Generally, a COP application isn’t made for H&W, it’s the authorities (doctors, adult social care etc who make decisions).

When should you have a Lasting Power of Attorney in place?

It is a common misconception that an LPA is something to consider when you are elderly or have a serious illness., However, accidents and illnesses can happen at any age. LPAs ensure you will be looked after, and your assets will be taken care of. An LPA can only be made when the person making the LPA has capacity. Not having an LPA in place until it is necessary may be too late.

Who can be your attorney?

Anyone can be an attorney, but it is a good idea to think about someone who you trust, who knows you and who you are confident will act in your best interest. When asking someone if they will be your attorney, it is important that you give the person you ask time to think about the role, making sure they fully understand the duties and to make sure they would feel comfortable in being your attorney.

Your attorneys do need to be 18 or over but can be anyone you trust. This could be a relative or a friend, your husband, wife, or partner or a professional, for example, a solicitor. It is good to note that a professional will charge for their time and these charges can vary but a regular attorney will not be able to claim an allowance for the time they spend carrying out their role as an attorney.

You can appoint more than one attorney, and this is often a good idea should something happen to the first attorney. If appointing more than one attorney, you must decide if they are to make decisions jointly or jointly and severally. If you appoint them jointly, they work together on all matters and all the appointed attorneys must agree on a decision. If you appoint them jointly and severally, each attorney can make decisions on their own or together with other attorneys.

If you would like some more information about a Lasting Power of Attorney we can help. Call us on 0800 988 7756 for a FREE initial chat

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