Your Guide to Lasting Powers of Attorney

None of us knows what the future holds and it is practical to make plans that can protect you in any eventuality.  Having a Lasting Power of Attorney (LPA) in place can do this for a variety of situations, for example if you develop dementia, sustain a life changing injury or have a stroke.  We know you will have questions about LPAs, why you should have one in place and the different options for producing this important legal document.  Caroline Johnstone, Associate Solicitor in our Private Client department, provides more information here, answering the important questions you may have and explaining how we can support you now and in the future. 

What is a Lasting Power of Attorney and why should I have one?

In simple terms, an LPA is a legal document naming an individual or a number of individuals to act as your Attorney in the event that you lose mental capacity in the future and are no longer able to make decisions for your day to day life, financial arrangements or medical welfare. 

There are two types of LPA and you can choose to set up either or both of them during your lifetime, while you still have mental capacity.  The two types are:

• Financial LPA – this LPA would allow your attorney(s) to manage your financial arrangements, being able to access your bank accounts, pay bills, withdraw cash etc.  You can also grant permission for them to make larger decisions regarding your property or investments.  A financial decisions LPA can be used by an individual when they still have mental capacity if they feel they need support with their arrangements.
• Health and care LPA – under this LPA, your attorney(s) would make decisions about your medical and care arrangements, ranging from day to day care to more serious medical considerations.  An LPA of this nature is only able to be used once an individual has lost mental capacity.

Having an LPA in place is vital in order to protect your future, with one in three of us developing dementia in our lives.  It is a common myth, however, that having dementia is the only reason why one should have an LPA, as there are several situations which could lead to a change in your mental capacity.  Having or developing learning difficulties in your lifetime, sustaining a serious brain injury, having a stroke or being diagnosed with an illness such as schizophrenia or depression can also give rise to a need for an LPA.

What are my attorneys not allowed to do under a Lasting Power of Attorney?

Each LPA will give specific details about the decisions an attorney can make on the behalf of the “donor” (i.e. the person making the LPA), and they are also specific about those they cannot make, for example:

• An attorney is not allowed to consent to marriage or a civil partnership.
• They cannot agree to a divorce application following a two year separation or consent to the dissolution of a civil partnership.
• An attorney cannot make decisions on voting on elections on your behalf.
• An attorney cannot place a child up for adoption or discharge with the donor’s parental responsibilities.

Can I write my own Lasting Power of Attorney?

LPAs have in the past had the reputation of being open to abuse, leaving some individuals vulnerable at a time when they need support the most.  This is why the Lasting Power of Attorney replaced the Enduring Power of Attorney several years ago with more strict measures in place regarding writing and registering an LPA. 

It is also for this reason that it is recommended that you seek legal advice and guidance when drafting an LPA, especially as neglecting certain important facts or sections of the document could leave the LPA invalid for future use.  The following complications can arise from producing a so-called “DIY LPA”:

• Invalid execution of the LPA due to errors relating to witnesses, or incorrect details on the document.
• Choosing attorneys who are unfamiliar with their responsibilities, not allocating their responsibilities correctly which can lead to disputes in the future and not choosing replacement attorneys.
• Lack of required certification from a qualified Certificate Provider.
• Ambiguous wording in the LPA which could lead to disputes in the future between attorneys. 

Unfortunately, there are many ways that a DIY LPA could lead to more financial and emotional turmoil at some point and, while an LPA could be seen as an expensive legal document, having one of such importance completed correctly clearly outweighs the initial financial outlay.  In fact, according to the Office of Public Guardian, approximately 15% of forms for LPAs that they receive have errors and therefore result in an invalid document.  Using legal advice can not only ensure you avoid errors of this kind, but can also leave you in no doubt that you are making the right choices regarding your attorneys, that they understand their rights, obligations and responsibilities and that you have considered the other documents that could impact their decision making abilities, such as an Advanced Directive.

What happens if I lose mental capacity and I don’t have a Lasting Power of Attorney?

Without an LPA in place, your loved ones will be required to apply to the Court of Protection to become a Deputy.  This is not a quick or simple process, during which time no decisions will be able to be made on your behalf while the paperwork is administered and the Court of Protection assess the application. In this situation, there is a risk that the Court will appoint an alternative individual to the one you would have chosen who is not aware of your wishes.

Once appointed, your Deputy will have many similar responsibilities and restrictions as an attorney would under an LPA, with them not able to write a Will or update an existing one, refuse medical treatment that may prolong your life or refusing contact with an individual.

To find out more about writing an LPA, you can contact Caroline or a member of the Private Client department on 01329 222075 or email privateclientenquiry@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.