Below is my article on Lasting Powers of Attorney, kindly published by Chris Jenkins in the Jordans Community Newsletter.
A Lasting Power of Attorney (LPA) is a legal document in which you appoint a trusted person or people (your ‘attorneys’) to act on your behalf, if you were ever to lose the ability to manage your own affairs, or if you needed some help to do so. LPAs are not just for older people; your LPA could be used if you were to become ill or were involved in an accident and had to go into hospital, as well as if you developed dementia, or simply in old age.
Dementia in particular is so prevalent nowadays, with our aging population and with people living longer than ever before, that no doubt we all know at least one person who is suffering from it. Many of us will have experienced this challenge affecting our own families. Making LPAs is a practical step you can take now, to give you control over who would be making decisions for you in that situation. You will know that you have empowered your trusted attorneys to help you maintain your safety and comfort, and the dignity and respect you deserve, both personally and financially, throughout your life.
The irony of a Lasting Power of Attorney is that you can only make one if you don’t need one, so the advice has to be to make one now, whilst you still can.
How is a Lasting Power of Attorney different to a Will?Your Will deals with what happens to your assets on death, whereas a Lasting Power of Attorney comes into play if you lose capacity during your lifetime and need someone else to run your affairs for you. There are two different types of LPA – ‘Lasting Power of Attorney for Property and Financial Affairs’ and ‘Lasting Power of Attorney for Health & Welfare’. Ideally, everyone should have one of each in place, because they do completely different jobs.
- Lasting Power of Attorney for Property and Financial Affairs
A Lasting Power of Attorney for Property and Financial Affairs enables your attorneys to manage your finances for you, exactly as you would yourself – for example to pay bills, use your bank account, deal with your investments and even to buy or sell a home for you. You can choose whether you wish your attorneys to be able to act immediately, or only if you were no longer able to understand and make financial decisions for yourself.
- Lasting Power of Attorney for Health & Welfare
A Lasting Power of Attorney for Health and Welfare allows your attorneys to make decisions about matters such as giving or refusing consent to medical treatment, staying in your own home with support from social services, moving into residential care, choosing a good care home and even your diet, dress or daily routine. There is also the option to give your attorneys power to consent to or refuse life sustaining treatment. A Lasting Power of Attorney for Health & Welfare may only be used once the donor has lost mental capacity to make the decisions, and not before.
Should I bring this up with my parents?
Yes. It can feel like a difficult conversation to have with your parents, but once you succeed in getting this crucial matter onto the agenda, your parents’ legal adviser will be very accustomed to dealing with clients needing LPAs, and they should make things as straightforward as possible.
Couldn’t my husband/wife just run everything for me, if I lost my marbles?
Unfortunately not – without an LPA, they won’t be allowed to. If you have ever had the thankless task of needing to try and persuade a bank or utility company to talk to you about an account held in somebody else’s name, you will know to your cost that they’re most particular on the subject!
I have an old-style Enduring Power of Attorney (EPA) already – will that do?
To some extent, yes. Enduring Powers of Attorney are still valid, although they cannot be registered until the donor loses capacity, which means that there will be a delay of several months at that stage whilst registration takes place. However, the catch is that an Enduring Power of Attorney does not give your attorneys power to make decisions about your health and welfare, so it would be a good idea to make a new Lasting Power of Attorney for Health and Welfare to sit alongside your existing EPA.
What if my attorneys do something they shouldn’t?
Your attorneys are under a strict duty to act in your best interests at all times. If someone has concerns about the way in which an attorney is using their powers, they should report them to a public body called the Office of the Public Guardian (OPG), which oversees how attorneys use their powers. The OPG would fact find and then launch an investigation, if it was warranted. The OPG has power to remove attorneys, and ultimately the matter could end up being taken further by the police, or by social services.
What if I lose capacity but haven’t got around to making Lasting Powers of
Your family would need to apply to court to appoint a ‘deputy’ to act on your behalf. In that situation, unfortunately you would not have any control over who was appointed to fulfil this vital role for you, and the process would be a lot more expensive and long drawn out, so it is infinitely preferable to get your LPAs organised whilst the going is good.
Once made, Lasting Powers of Attorney must be registered with the OPG, which charges a registration fee of £82 per deed.