What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that allows you to appoint one or more people to make decisions on your behalf during your lifetime. The people you appoint to manage your affairs are called the Attorneys. A Lasting Power of Attorney is a completely separate legal document to your Will although many people put them in place at the same time as getting their Will written, as part of wanting to plan for the future.
Why is a Lasting Power of Attorney So Important?
Once you have a Lasting Power of Attorney in place you can have peace of mind that there is someone you trust to look after your affairs if you became unable to do so yourself during your lifetime. This may occur, for example, because of an illness or old age or an accident.
Having a Lasting Power of Attorney in place can allow your attorney to have authority to deal with your finances and property as well as make decisions about your health and welfare. Your Lasting Power of Attorney can include binding instructions together with general preferences for your attorney to consider. Your Lasting Power of Attorney should reflect your particular wishes so you know that the things that matter most would be taken care of.
You can only put a Lasting Power of Attorney (LPA) in place whilst you are capable of understanding the nature and effect of the document i.e. you have the required legal capacity. After this point, you cannot enter into a LPA and no one can do so on your behalf.
Many people don’t know that their next of kin has no automatic legal right to manage their spouse’s affairs without a Lasting Power of Attorney in place, so having to make decisions on their behalf can become prolonged and significantly more expensive.
The best solution is for couples to have ‘Mirror’ (identical) Lasting Powers of Attorneys because these documents would allow them to appoint each other to make decisions about each other’s financial affairs and health issues; should one of them lose capacity to do so.
What Happens Without a Lasting Power of Attorney?
Without a Lasting Power of Attorney (LPA) in place there is no one with the legal authority to manage your affairs, for example, to access bank accounts or investments in your name or sell your property on your behalf. Unfortunately, many people assume that their spouse, partner or children will just be able to take care of things but the reality is that simply isn’t the case.
In these circumstances, in order for someone to obtain legal authority over your affairs, that person would need to apply to the Court of Protection and the Court will decide on the person to be appointed to manage your affairs. The person chosen is appointed your ‘Deputy’. This is a very different type of appointment which is significantly more involved and costly than being appointed attorney under a LPA.
If you wish to have peace of mind that a particular person will have the legal authority to look after your affairs on the event of you losing capacity and you want to make matters easier for them and less expensive, then you should strongly consider getting a Lasting Power of Attorney in place.
Types of Lasting Power of Attorney Explained
Two types of Lasting Power of Attorney are available under English law:
- Health and Welfare Lasting Power of Attorney
- Property and Financial Affairs Lasting Power of Attorney
A Health and Welfare Lasting Power of Attorney (LPA) allows you to name Attorneys to make decisions about your healthcare, treatments and living arrangements if you lose the ability to make those decisions yourself. Unlike the Property and Financial Affairs LPA, this document will only ever become effective if you lack the mental capacity to make decisions for yourself.
If you can’t communicate your wishes, you could end up in a care home when you may have preferred to stay in your own home. You may also receive medical treatments or be put into a nursing home that you would have refused, if only you had the opportunity to express yourself; and this is when your attorney, appointed by the Lasting Power of Attorney, can speak for you.
A Property and Financial Affairs Lasting Power of Attorney (LPA) allows you to name Attorneys to deal with all your property and financial assets in England and Wales. The Lasting Power of Attorney document can be restricted so it can only be used if you were to lose mental capacity, or it can be used more widely, such as if you suffer from illness, have mobility issues, or if you spend time outside the UK.
Joint bank, building society and business accounts can be severely restricted if ONE of the account of the account holders loses mental capacity and there is no registered LPA in place. The 2013 British Bank Association booklet entitled “Guidance for People Wanting to Manage a Bank Account for Someone Else”, states:
If one joint account holders loses mental capacity, banks and building societies can decide whether or not to temporarily restrict the use of the account to essential transactions only
The restricting of a joint account has severe implications as the joint owner cannot freely withdraw what is their own money without an order from the Court of Protection. This could be devastating, especially if the joint owner has their only form of income, such as their pension, paid into this joint account.