Private client solicitors, financial advisors, or even friends and family, may have stressed the importance of ensuring you have a will. What is less spoken about is ensuring you have a Lasting Power of Attorney (LPA) in place, to guarantee that if you lose capacity and can no longer make decisions there is something in place to safeguard your wishes. Here, we look at what LPAs are, why they are important, consequences of not having one and a little about the people you choose to be attorneys.
A Lasting Power of Attorney is a legal document that grants someone you trust the authority to make decisions on your behalf when you are unable to do. This may be due to mental incapacity or physical constraints. There are two main types of LPAs: one for financial and property matters and another for health and welfare decisions. It is highly recommended to have both to cover all areas.
Health and Welfare
This LPA deals with decisions regarding your medical treatments, where you live, and the care you receive. It ensures that your preferences regarding your well-being are upheld even when you are unable to communicate your wishes.
Financial and Property LPA
A Financial and Property LPA deals with your finances, allowing attorneys to buy or sell property, pay bills, and make investments on your behalf. This is crucial to safeguard your financial interests and ensure that your assets are managed responsibly.
The Importance of Early Planning
One of the main issues we see when someone comes to us asking for an LPA to be drafted is that sometimes it is too late. You can only create an LPA when you have the mental capacity to do so. We have seen many adult children come to us when their parent has been placed into a care home, but most of the time their parent has already lost capacity. We advise you create your LPAs alongside your will or as soon as possible. Waiting until a crisis occurs or waiting until you need one could leave you without essential legal protection. Currently LPAs are taking 20 weeks to process and unfortunately, we have even seen clients pass away before theirs is approved.
Consequences of not having an LPA
If you lose mental capacity before your LPA is in place this can lead to many issues for both you and your loved ones. Without an LPA, your family will encounter issues in accessing your finances, selling property, or making medical decisions on your behalf. If there is no LPA, they will need to apply to the court to have a deputy appointed, which can be a lengthy and costly process, potentially delaying the care you need and causing additional stress for your family. Even then, if a deputy is appointed this person may not be known to you or your family this can create even more hurdles for others to access your funds.
Choosing Your Attorney
This is the most important decision when creating an LPA. The most popular option is to choose your spouse or partner, opting for adult children as replacements if needed. It’s important to choose someone you trust completely, as they will be making big decisions on your behalf, often during difficult times.
Changing Your Attorney
Things change and you may find that you wish to change your attorney for a variety of reasons. This is possible in some circumstances. You will need to revoke your current LPA and apply for a new one. Again, this can take 20 weeks plus so ensure it is done when you have capacity and not as a last resort.
LPAs are critical when you are looking to plan for your future and ensure your assets and health can be dealt with when you no longer can. Just like wills, they are essential to have in place for peace of mind for yourself and your loved ones.
Author: Peyton Matthews-Hewer
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic. If specific advice is required in connection with any of the matters covered in this article, please speak to Marlborough Law directly.