A recent Which? survey of 2,000 UK residents showed that only one in seven people have Powers of Attorney in place. Which? believe that this is partly due to lack of awareness among the public about Lasting Powers of Attorney (LPAs). With this is mind, I would like to answer some of the questions I commonly get asked by clients which hopefully highlight how necessary it is to have LPAs in place.
1. Why are Lasting Powers of Attorney so important?
Without a property and financial affairs LPA in place, no one (not even a spouse) can access your finances without going to court. This type of LPA allows you to pick people that you trust to look after your finances if you lose capacity (or if your LPA is set up in a certain way, before you lose capacity if you ask them too).
A health and welfare LPA is just as important because it allows you to handpick the people that will make medical decision on your behalf after you have lost capacity. You can then ensure that those people are aware of your wishes and can act as you would if you were able to make medical decisions yourself.
2. If I make an LPA, does that mean my Attorneys can say I am not able to deal with my
finances and start making decisions for me?
No, there are a number of safeguarding processes that our Firm put in place so you can be confident that this will not happen.
We would usually store your original property and financial affairs LPA for you and we would not release the original document or a certified copy to an Attorney without your consent or a capacity report carried out by a doctor which clearly states that you no longer have capacity.
As your Attorney's will need the original LPA or a certified copy to show to banks or other institutions before they can start acting for you, you can be certain that your Attorneys will not be able to act whilst you have capacity without your consent.
3. What sorts of decisions can my Attorneys make for me?
If you have a property and financial affairs Enduring or Lasting Power of Attorney, your Attorneys will be able to look after your finances for you and use your assets to pay for your care or anything else you require once you have lost capacity. This may include selling property to free up cash for care fees, bank cheques, paying bills and manage or re-arrange your investments.
A health and welfare LPA would allow your Attorneys to make decisions about your medical care including deciding on the best place for you to receive care (at home, a care home etc), making treatment decisions on your behalf with the help of doctors and making life sustaining treatment decisions if you allow them to.
4. If I am still healthy and of sound mind, why should I make an LPA now?
If you leave making an LPA until you are poorly or have a diagnosis that means you are likely to lose capacity, you may have waited too long and no longer meet the mental capacity tests for making an LPA. This would leave your loved ones with no other choice but to apply to court to access and manage your assets. This process is lengthy and costly so should be avoided if at all possible.
Another factor to consider is that your LPAs cannot be used by your Attorneys until they have been registered with the Office of the Public Guardian. Registrations are currently taking around 4 months to be processed which means if you only set up your LPAs when you urgently need to use them, you will face a substantial delay.
Which? Survey- Your Lasting Power Of Attorney Questions Answered
Originally published 24 Feb 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
