Lasting Power of Attorney: do your parents need one?

January 26, 2018

LPA is short for “Lasting Power of Attorney”.  They were actually intended for use by younger people, but in reality they have really become essential when looking after elderly parents.

The key point to realise is that there is no automatic right for your next of kin to take financial or health decisions on your behalf.  Banks and healthcare providers now insist on powers of attorney being in place, but there is a challenge with explaining this to some who were perhaps able to care for their own parents without requiring a legal document to do so.  Things have changed and anyone caring (or intending to care) for their parents in later life really must ensure that LPAs are in place.

It can feel like a difficult situation to raise with parents, but provided that this is approached sensitively and pragmatically it need not be upsetting.  LPAs can be put in place only to be used a long time in the future, but there to be used as a safety net in case they are needed.  Without having legal authority to make decisions for your parents, those decisions would instead be taken by the healthcare services or by the courts.

By sorting an LPA sooner rather than later it allows you to plan in advance what decisions your parent would want you to make.  It can also greatly ease the pressure of challenging decisions in the future as the discussions had when putting it in place can provide guidance about what your parent would want you to do to support them.  For information on LPAs see our further information here.

Sheltons Solicitors (part of ) Edward Hands & Lewis Solicitors are experienced in supporting families putting LPAs in place, and can help guide you through the process, including if you have any questions about who to appoint.  

We recognise that, whilst from a legal perspective they are essential documents, there can be a sensitivity about putting them in place.  Please contact us if you are looking at LPAs for either yourself or a family member, and we would be happy to assist.

What is a Lasting Power of Attorney

When a person can no longer handle or manage their own affairs, this is when a Lasting Power of Attorney comes into play. This situation could happen to anyone at any age and be because of illness, disability or mental impairment. Simple matters will become impossible such as handling a bank or building society and purchasing a house.

In the event that you are no longer capable of handling or managing affairs and you don’t have a LPA in place, then it is put into the Court of Protection hands. They will appoint a Deputy who will manage all the affairs for you.

There are associated disadvantages to this as you will be expected to pay significant legal fees and Deputy won’t know about your personal circumstances.

Lasting power of attorney guidance

You have two types of lasting powers of attorney:

Property and Affairs LPA – allows you to appoint someone who you trust to make decisions about finance and the way your property and affairs are dealt with.

Personal Welfare LPA – allows you to appoint someone you trust to make decisions on your behalf relating to your personal healthcare and welfare. This also includes decisions to either give or refuse consent for treatment.

What happens if I don’t have an LPA in place? Court of Protection

A deputy order gives the appointed deputy or deputies the ability to make decisions on behalf of someone who has lost the capacity to make decisions for themselves. To obtain a deputy order an application must be made to the Court of Protection.  If the application is successful the Court will grant a deputy order setting out the deputy’s powers. There are two applications that can be made one being in relation to finances and the other health and welfare

The powers may relate, for example, to the person’s finances, property or accommodation (including where they live or whether they go into care), their medical treatment and other healthcare issues, and their personal welfare.  

The powers given depend on the person’s needs.

You will need to make a deputy application when there is no Lasting Power of Attorney (or Enduring Power of Attorney) in place and the person in question no longer has the mental capacity to appoint attorneys.

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.

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