It is important to make a lasting power of attorney to give you security and peace of mind if you were unable to make decisions due to serious injury, illness or declining mental capacity.
By making a lasting power of attorney you will ensure that your loved ones have the authority they need to look after your finances, health and personal affairs.
If you do not have a power of attorney in place your family members will not have the power to act on your behalf.
Even if you have a Will, you still need an LPA. A Will and LPA are different documents. A will only comes into effect upon death and your named executors would deal with your estate. Whereas an LPA operates while you are alive and appoints attorneys to make decisions on your behalf during your lifetime. An LPA ends upon your death, at which time your executors named in your Will would take over.
TYPES OF POWER OF ATTORNEY
There are two forms of Lasting Power of Attorney (LPA):
A Property & Financial Affairs Lasting Power of Attorney appoints someone (or more than one person) as your attorney, so they can manage your financial and legal affairs in the same way that you would.
It covers your property, money in the bank and investments, but does not give your attorney any control over your medical or personal care.
A Health and Welfare Lasting Power of Attorney allows you to choose one or more people to make decisions such as for medical treatment. The medical professionals will then be able to liaise with your chosen attorney regarding decisions about your treatment, your ongoing care and welfare support.
A health and welfare Lasting Power of Attorney can only be used if you lack the capacity to make decisions for yourself.
A valid LPA must include a certificate completed by an independent third party known as the ‘certificate provider’ confirming that, in their, opinion:
- the donor understands the purpose of the LPA and the scope of the authority conferred under it
- no fraud or undue pressure is being used to induce the donor to create the LPA, and
- there is nothing else that would prevent the LPA being created.
WHY MAKE ONE AT ALL?
It is protection for you if one day you were to find it difficult or impossible to manage your day-to-day affairs.
Illness or accident could make you incapable of leaving your home or being able to sign your name, or even mentally unfit to pay bills and other commitments.
It is a common misconception that your spouse or next of kin will be able to make decisions on your behalf, but this is unfortunately not the case. Nobody has the legal right to manage your affairs without an LPA in place, not even your spouse. Even jointly held accounts may be at risk of being frozen where the bank becomes aware that one of the joint account holders has lost mental capacity. Without an LPA if you lose your faculties your assets could be inaccessible just when they are needed to help pay for your care, your mortgage and other costs.
Neither does your next of kin have any authority to make medical decisions for you without an LPA in place. Without an LPA the doctors and medical professionals are legally bound to make decisions themselves which they consider to be in your best interests, which may not have been what you or your family would have wanted.
You can add instructions or preferences in the LPA on how you want your attorneys to act, for example that you would prefer to receive care at home rather than in a residential care home, or for example that you do not want your house sold unless you have not occupied it for a certain length of time. Not having an LPA can be stressful for your family as they may not know your wishes.
If you make an LPA, you can choose who you want to act on your behalf and how they should manage your affairs. You can appoint up to 4 main attorneys and replacement attorneys and you can decide whether they must make decisions together or separately, or a mixture of both.
If you do not have an LPA and you lose mental capacity an application would need to be made to the Court of Protection to appoint a deputy. You would have no say in who was appointed as your deputy. It is far less expensive and quicker to make an LPA than the Court of Protection and will give you the peace of mind of knowing that should the worst happen, your affairs or welfare will be properly looked after by someone you trust. Sorting out an LPA now will save loved ones £1,000s by having to go to court, as well as additional stress and heartache.
It is still important to have an LPA even if you do not currently have significant assets. You may still own a home which could need to be sold by your attorney to pay for your care, otherwise this would not be able to be sold until a deputy was appointed by the court, or you may come into money later for example by inheritance.
WHY USE A SOLICITOR?
Every adult has the right to manage his or her own money and affairs. Sometimes, however, our ability to do this decreases. Whether this is caused by illness, disability, or an accident, there are a number of practical steps we can take to help you prepare for this.
If this describes your situation, or that of someone close to you, you should consider getting legal advice. As solicitors, we can help by encouraging you to get your affairs in order and make your wishes for the future known.
Making an LPA hands your future decision-making over to someone else, so it is crucial to get this right. We can assist you with guidance including who could be a suitable attorney, how you can clearly express your wishes, advice on specific wording and ensuring the LPA is valid.
FOR PEACE OF MIND DO NOT LEAVE IT ANY LONGER
A Lasting Power of Attorney can only be made while you still have capacity. Hopefully it will never need to be used, but it acts as insurance for your family if it does.
Loss of mental capacity does not only happen to the very elderly. As well as dementia, this can happen through strokes or accidents at any time. It is often these unexpected accidents or illnesses that cause the most difficulties for your family. Do not leave making an LPA until it is needed as it will be too late by then.
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