Have you recently noticed that somebody close to you is starting to suffer from ill health or becoming more forgetful about things?
It’s not always easy to admit that someone you care about is getting old, or even that your own health is beginning to deteriorate, but it’s important to put arrangements in place ahead of time so that the right healthcare and financial help can be provided when the time comes.
Of course, there is no need to wait until you notice signs of declining physical or mental health – and if you want to be prepared in advance, you can arrange a Lasting Power of Attorney, or LPA, in full health with no intention of triggering it for many years still to come.
What does a Lasting Power of Attorney do?
An LPA appoints an individual to serve as the ‘attorney’ or legal representative of another who has become incapacitated due to declining mental health, brain injury, or a physical injury that has rendered them incapable of communicating their own wishes.
It allows the attorney to make decisions that directly and personally affect that person, which can include their financial arrangements, the healthcare they receive, where they live, and even decisions like whether to sell their house.
An LPA does not instantly give power to the named attorney though – it has to be triggered when the appropriate circumstances arise, which is often when the individual involved has experienced a cognitive decline associated with ageing, or following a major accident or injury.
Reasons why you should have an LPA
The list of reasons why you should have a Lasting Power of Attorney goes on and on, but here are a dozen of the most compelling arguments in favour of arranging this important document earlier in life.
You control an LPA
You can name the person you want to act as your attorney, whereas if you are incapacitated without an LPA, decision-making responsibilities could be awarded to anyone by the Court of Protection – including, for example, a relative who you don’t believe has your best interests at heart.
An LPA is ‘lasting’
That L is important. An ordinary power of attorney can be made in good health, but will be revoked by mental incapacity. An LPA not only lasts beyond the point of incapacity, but is generally not even triggered until that point, when it is needed most.
There are two ‘flavours’
Perhaps you want someone to help with your finances, but you are still mentally capable of managing your affairs in general. Or perhaps you want to appoint an attorney specifically to decide on your health care provision.
LPAs come in two forms: property and affairs, and personal welfare. The latter can only be used when you are no longer able to make your own decisions about healthcare and welfare, so nobody will take your rights away from you until it is absolutely necessary.
You cannot be coerced
Any new LPA must be discussed with a certificate provider, which is either a professional, or someone you trust, who must verify that you know what you are agreeing to and that you have not been coerced into signing.
LPAs must be registered to come into effect
As mentioned above – but worth stressing again – an LPA only comes into effect when it is triggered or ‘registered’. Property LPAs can be triggered while you are still mentally capable, to appoint an attorney to help you out, whereas welfare LPAs are solely for when you cannot decide for yourself anymore.
You can state limitations
If you want to limit your attorney’s powers, you can do this by clearly stating limitations on the LPA. However, bear in mind that once you are mentally incapacitated, you will be unable to lift any such limits to grant more general powers – so don’t restrict access to parts of your life that you will want them to manage for you later down the line.
You can name multiple attorneys
You can grant rights to several different people if you want, who can make decisions together or separately. If each has individual decision-making responsibility, this also ensures you still have representation if one of your attorneys dies.
You can nominate successors
If you only want one attorney with responsibility, but you want someone in reserve in case your first choice dies or is incapacitated in their own right, you can nominate a successor to take over the role when it becomes appropriate for them to do so.
Financial powers are limited
Your attorney can’t just give away all of your money. Financial gifts are capped, and a court order will be needed to approve more sizeable gifts of your money to other people. Similarly, professional financial advice must be sought before your attorney can make investment decisions on your behalf, protecting you from them speculating too wildly with your money.
You are protected
The Court of Protection can revoke LPAs and can be asked to rule on whether or not they are valid. Meanwhile, the Office of the Public Guardian can be contacted when incidences of abuse by attorneys are suspected, or if they do not appear to be acting in the best interests of the individual.
An LPA is faster
The Court of Protection exists to make sure your family gets the access to your finances that they need if you are incapacitated, but without an LPA that can take a long time to put into place, which can leave your loved ones to face hardship in the meantime. With an LPA it’s clear who gets access to your money and as soon as it is registered, they can start using it to make sure your family is properly looked after.
It gives you peace of mind
You probably wouldn’t want to die without a will in place, especially if you own property, have substantial cash savings, or have a partner or dependants. But what if something happens to you that does not kill you, but leaves you incapable of communicating your wishes to those closest to you.
It’s an uncomfortable thought but it’s crucial to consider it in good health and make the sensible decision – and an LPA is probably the single best way to make sure that your interests are protected from the moment you are incapacitated until your death, after which your will can distribute your estate in the usual way.
The information provided in all of our blogs reflects only a narrative of some elements to consider on the topic. The blogs do not contain considered legal advice and should not be relied upon as advice. Please see our website terms and conditions for full details of our disclaimer. If you are interested in obtaining advice, please contact one of our lawyers who will be happy and able to advise you on your own particular circumstances.