Lasting Powers of Attorney are a fantastic tool to help people prepare for the future. They allow you to appoint other people to deal with your affairs, now or in the future. A common misconception is that they are just for “elderly” people – in fact, the Office of the Public Guardian, which is the Government department which oversee them, are trying to encourage all adults to make Lasting Powers of Attorney. They can be used in a broad range of circumstances such as if you are frail or ill and unable to call to the bank, if you are on an extended holiday, or if you lose what we call mental capacity and may be unable to make your own financial or lifestyle decisions.
There are two types of Lasting Powers of Attorney (LPAs) and each requires a different document.
The most commonly requested is the Financial LPA. This will allow you to choose who can deal with your finances in the future, if you can’t. Using this LPA, your Attorney(s) will be able to do things such as buy or sell property, open, close, or operate any bank account/invest savings, deal with pensions, and much more. This is invaluable as it means that in circumstances where someone can no longer deal with their bills and finances in general, someone is in place and has legal permission from them to help. Even if you have previously asked somebody to help, and perhaps given them your bank card or details, if you lose mental capacity they must stop accessing your account. If they continue to do what they think is helping, and even if you would likely be in agreement that they do so, they can leave themselves open to being accused of criminal activity.
The Second LPA covers Health and Welfare. This can be made at any time but your Attorney(s) will only be able to use this if you lose mental capacity, so you make all your own decisions up to that point. Typical decisions that can be taken using this power may include where you should live and who with, day to day decisions about your care and consenting to or refusing medical treatment on your behalf. If you choose to allow them, your Attorney(s) will also be able to refuse or consent to life sustaining treatment on your behalf. This is treatment needed to keep you alive such as, for example, fluids or medication, or an operation. If you have given them permission, and your Attorney(s) don’t believe that you would want the treatment, or it is not in your best interests, they can refuse it on your behalf.
In order to make Lasting Powers of Attorney, you need to have mental capacity to understand what you are doing. When we recommend LPAs, sometimes clients say they will come back if they start to have trouble dealing with things, and we remind them that once they have reached this point, this may be too late. Ideally you will make the LPAs long before that stage, and have them available to you in the future whenever you may need them.
If you have been diagnosed with dementia or any other issue, this does not mean you cannot make LPAs. We would strongly recommend that if you are in this position, you take advice without delay. Often, people are diagnosed early and have plenty of time to make LPAs, but unfortunately occasionally people do put off dealing with their legal affairs until it is too late. If there are doubts over your mental capacity to make an LPA, we can write to your Doctor and ask for their opinion. If your doctor feels you have sufficient capacity, the Lasting Powers can be done, and the letter evidences the medical position at the time the LPA(s) was entered into. If someone has already lost mental capacity and cannot make LPAs, we can also guide them and advise them of their options.
It is also important to know that each LPAs must be checked and registered by the Office of the Public Guardian. This takes up to 8-10 weeks and so even after you have signed your LPAs, you may have several months to wait until they can be used. This can cause issues sometimes, where something urgent crops up which the Attorneys cannot deal with as the LPA is not yet valid. All in all, the advice is to consider how useful LPAs are, and to make them early as they can be registered and thereafter held until needed, even if it is years later.
There are lots of common misconceptions about LPAs. Some clients feel concerned that their Attorneys can suddenly take over and overrule their decisions, and some people worry it is permanent and cannot be changed. You can actually cancel the LPA after it is registered, as long as you have the mental capacity to do so. This sometimes happens where people fall out, or circumstances change. In agreeing to be an Attorney for you, the Attorney(s) are confirming that they will act in your best interests at all times. It is extremely important to choose your Attorney(s) wisely to ensure they are the right people for the job, and you trust their judgment. We can guide you in your choice and answer any questions you may have. Planning for the years to come will give you peace of mind and allow you to keep control of your own affairs no matter what the future holds.
Often, people believe that if they have made a Will, this allows the person(s) they have appointed as Executor(s) to step in and deal with their affairs if they lose capacity. This is not the case, as a Will only applies after death. To ensure that you have full control of your affairs both while you are living and after your death, we would recommend considering having LPAs in place to protect you now, and a well-drafted Will to ensure your wishes are carried out when you are no longer here.