Planning for the future isn’t just about Wills. This blog explains Lasting Powers of Attorney and why they’re crucial for protecting you and your loved ones.
What are Lasting Powers of Attorney?
Lasting Powers of Attorney, referred to as LPA’s, are documents that allow you to legally nominate a person or persons to assist you with your property and finances or health and welfare whilst you are alive but may not have mental capacity. These are often confused with Wills which only allow someone to deal with your affairs once you have passed away.
What do LPA’s actually do?
To answer this, we need to clarify that there are two types of LPA’s which are:
LPA’s for Health and Welfare
Allowing your attorneys to make decisions about your medical care, where you live, your daily routine and life sustaining treatment. It can only be used once you have lost mental capacity.
LPA’s for Property and Finance
Allow your attorneys to make decisions about your property and finances. This includes having access to you bank or building society accounts, paying your bills, collecting any benefits or pensions you may receive, and if necessary, selling your property. It can be used if you have lost mental capacity or with your permission if you have mental capacity but need assistance and are housebound.
How long do they take to create?
Once completed, the documents need to be registered with the OPG who are the body responsible for overseeing LPAs. This takes 12 weeks. Once the registered documents are returned, they can be used by your attorneys straight away subject to any instructions or restrictions in the document.
Who can be my Attorney?
There is no limit on the number of people you can appoint to act as your attorney, however you should keep in mind that the more people you have acting for you the more difficult it could be when it comes to making joint or unanimous decisions. They must be over 18 and have mental capacity at the time of appointment and they must not have been declared bankrupt or have a criminal record. They can be your spouse, children, siblings, other family members or friends. The responsibility they have will be quite serious so it’s best to appoint people who you trust. Your attorneys must always act in your best interests and in accordance with guidance in the Mental Capacity Act 2005.
What happens if I do not have an LPA?
If you do not have an LPA in place and later lose mental capacity to manage your own affairs your family or friends can make an application to the Court of Protection to be appointed as your Deputy. However, these appointments are for property and financial affairs only and successful health and welfare applications are rare. You do not have a choice of who is appointed in this instance, it depends entirely on who “steps up” to help you and applies to the Court. The Court of Protection process is more involved and more complex, and applications take a lot longer to process, up to 12 months.
When should I make and LPA?
Anyone over the age of 18 can make an LPA. In reality as soon as you own a property you instantly have an asset and in most cases a debt (mortgage). You may also have savings, be in receipt of pensions or benefits or have business assets and so a property and finance LPA should be considered. There may be a family history of stoke or dementia in which case you may wish to consider a health and welfare LPA. Unfortunately, LPA’s are often associated with old age, Dementia or Alzheimer’s. In reality you could lose mental capacity in other ways, a sudden stroke, a road traffic accident or a head injury could cause loss of capacity.
So are LPAs more Important than a Will?
Whilst there is a backup if you do not have an LPA via the Court of Protection this route can often be more complex and stressful for family.
If you lose capacity and your family need to deal with aspects of your care, the local authority or care provider will ask to see an LPA to know that the person they are dealing with has authority to manage your affairs. If an attorney is trying to manage your bank account, pay mortgages, bills or utilities or deal with benefits or pensions the companies and banks will also want proof of an attorney’s authority to act on your behalf.
These documents therefore not only ensure you have someone your choosing there to help you if you lose capacity but also provides legal authority and protection for their actions. They should therefore be considered equally as important as your Will.
CONTACT US
For further information, contact us here, call 01685 885500, or pop into one of our offices in Aberdare, Blackwood, Hirwaun, or Merthyr Tydfil to speak with an experienced member of our team.
