Research carried out by Scottish Widows has found that one in three people don’t understand how a Lasting Power of Attorney works. We take a look at the key issues to be aware of.
A Lasting Power of Attorney or LPA is a legal document that gives authority to a trusted attorney chosen by you, enabling them to deal with your affairs on your behalf should you ever lose the ability to manage them yourself.
Without an LPA, your loved ones could have a great deal of difficulty in helping you and making decisions on your behalf, should the need ever arise.
You need an LPA even if you are married
It is a common misconception that your spouse will be able to make decisions for you, if this was necessary. In fact, this is not the case. Should you lose the ability to manage matters, no-one can do things on your behalf until they have the legal authority to do so.
This means that no-one will be able to pay bills for you or arrange your care. If you have not made an LPA, your loved ones will have to apply to the Court of Protection for a deputyship order giving them authority to act for you. This is a much longer process than putting an LPA in place and is more expensive, both to make the application and on an ongoing basis.
Choosing the right attorney is crucial
Acting as someone’s attorney can be onerous. Dealing with someone’s property and financial affairs will be time-consuming and can also be complicated. They will also need to keep detailed records of all the transactions carried out on your behalf.
This means that it is very important to think about who you appoint to be your attorney. It will need to be someone who will be able to manage the role and who will have the time to devote to it. It is often advisable to select someone who is younger than you so that they are likely to be able to take on the task should it be necessary in the future.
You can appoint a back-up attorney who can act if your first choice is unable or unwilling to do if the time comes.
Once you lose capacity, it is too late to make an LPA
You need to have the mental capacity to make an LPA, so it is important to put this in place sooner rather than later. It might not be too late if someone is in the early stages of mental deterioration however. Provided they understand what they are signing and the implications, they may still be able to make an LPA. They will need to take professional advice before signing and an expert will need to certify that they have the requisite level of understanding.
The best course of action is to make an LPA now. It can then be kept in case it is ever needed.
There are two different types of LPA that you can make
There are two different types of LPA and you can make either or both. They are:
- A property and financial affairs LPA; and
- A health and welfare LPA
A property and financial affairs LPA allows your attorney to deal with matters such as accessing your bank account, managing your investments and paying bills.
A health and welfare LPA gives your attorney the authority to arrange your care, decide on your day-to-day activities and consent to medical treatment on your behalf.
Over four-fifths of over-55s do not have an LPA in place
Studies have found that some people are not sure when the right time is to make an LPA. It is good practice to make one straightaway. If it is not needed, then it need never be used. If it is needed, your loved ones will be able to ensure that you get the assistance you need with your affairs as soon as this is necessary, should it ever be. This could be in the event of a short-term incapacity, such as a stay in hospital, or a long-term loss of ability.
The LPA form includes safeguards, including the option to name individuals whom you would like to be informed before the document is used. You can also appoint two or more attorneys to act together if you wish.
Making an LPA is the best way of ensuring that your affairs can be managed seamlessly, should this ever be needed.
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at [email protected]