What is Lasting Power of Attorney?
A Lasting Power of Attorney (“LPA”) is a legal document which you prepare in readiness of one day having to need it. As a result, although many people think it is unnecessary and can be avoided, they are only useful during your lifetime and especially beneficial in unexpected circumstances in which they are required. An LPA allows an appointed person or persons (“the Attorney”) to make certain decisions on your behalf. These decisions can be separated either in relation to your Property and Financial affairs, or in relation to your Health and Welfare.
A Property and Financial Affairs LPA can be used by an Attorney to pay your bills, sign a cheque on your behalf, dealing with your property matters or making sure your investments are doing well. This type of LPA can be used:
- where you cannot attend to your property or financial affairs;
- where you lose mental capacity; and
- where you are physically unable to attend to your affairs because of a missed flight or other travel difficulties, being on holiday, unwell or due to long term sickness.
An Attorney will be able to ensure a continuous and smooth functioning of your affairs and manage these on your behalf.
Unlike a Property and Financial Affairs LPA, a Health and Welfare LPA can only be used in circumstances where you do not have mental capacity. Therefore, a Health and Welfare LPA allows your Attorney to make more personal decisions which will affect your welfare including:
- day-to-day decisions, such as what you eat, what you wear; and
- can also authorise attorneys to speak to your doctors and control medical decisions, such as refusing life sustaining treatment, which you otherwise would not be able to make.
It is crucial your Attorney(s) are people you trust to make the decisions in your best interests.
Without an LPA, there is no other legal authority which allows someone else to make decisions for you. LPAs are important documents which will be necessary if you lose the ability to manage your personal and financial affairs or health and welfare yourself.
LPAs can only be created when you have the mental capacity to understand your instructions, including who you wish to appoint and the consequences of having an Attorney; preparing these documents and ensuring they are registered in advance is important as you do not know when they might be needed.
What happens if I lose my mental capacity and do not have an LPA?
In the event you lose your mental capacity without having LPAs prepared, an application to appoint a deputy will need to be made to the Court of Protection. One of the risks with this is that you will not have chosen the person making the application yourself, as opposed to an LPA where you have control over who acts as your Attorney. It could mean someone you have not chosen, or trust will act as your deputy and make decisions on your behalf.
The process can be expensive, and an application could take months or longer during which time potentially urgent and important decisions relating to your financial affairs or even health could be delayed.
Appointing Attorneys will require careful consideration as you do not want to appoint someone who could abuse the control they have. It is important to choose someone who knows you well and who you trust to make decisions in your best interests.
You can appoint more than one Attorney and it could be a relative or even a close friend. Where one of your Attorneys is unwilling or unable to act, the LPA allows you to appoint replacement Attorneys.
It is not essential for an Attorney to understand all the ongoings of properties or finances you have as you can specify further instructions in the Property and Financial Affairs LPA which allows your Attorneys to receive guidance from trusted advisors and could even extend powers for the Attorney to have discretion to re-assign certain tasks to another person but retain control over your affairs overall.
What are the next steps? Can I do this myself?
The biggest risk to your business of having no LPA in place, is having one which has not been drafted properly. There is no minimum age at which you should consider putting an LPA in place as your circumstances may determine this for you and it is best to be prepared. At KaurMaxwell we can draft the document for you and ensure that it is in accordance with your instructions.
The contents of this article are intended as a guidance for readers and does not constitute legal advice. KaurMaxwell do not accept responsibility for this information or matters affected by changes in the law or otherwise.