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What is a Lasting Power of Attorney and why do I need one?

Updated: Jan 21, 2020

Without these documents in place, you could be leaving your family with a very costly application to the Court of Protection.

Thinking and talking about what would happen if our faculties deserted us is uncomfortable. Yet it's important to consider how much worse the situation would be if you had a stroke, serious accident or dementia (eg, Alzheimer's) without sorting it first.

If someone has difficulties that mean they can't make decisions anymore, they will need help managing their finances along with their Health and Welfare. A Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity. The key points to remember...

  • Don't think you suddenly give up control. You can choose whether it can be used either before, or only when, you lose mental capacity.

  • You can cancel and re-do your Power of Attorney at any point. Meaning those changes in family circumstances will not effect your control.

Your representative should only ever make a choice for you if you're unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able to make your own decisions again.

It's worth noting LPAs replaced the previous Enduring Power of Attorney (EPA) system. EPAs set up before 1 October 2007 will still be valid, whether or not they have been registered, though they must be registered when the person loses capacity.

The Health and Welfare Lasting Power of Attorney

In a nutshell, the health and welfare document sees a nominated individual make decisions over day-to-day healthcare and medical treatments, as well as deal with any health and social care staff. 

Just because you give the trusted person power of attorney over your health, that doesn't mean they will automatically gain control over your financial affairs and vice versa. If you require the same individual to have power of attorney over both aspects of your care, then you will have to fill out the two forms separately.

Another key difference is that the health and welfare LPA can only be used after the person loses capacity, not before.

Property & Financial Affairs Lasting Power of Attorney

You may have heard a lot about Health and Welfare Lasting Power of Attorneys (LPA), but have you considered making a Financial one?  

What happens if I don’t have a Financial LPA?

If you do not have an LPA in place and later become mentally incapacitated, your relatives or friends may face long delays and expense in applying to the Court of Protection in order to obtain legal authority to make decisions on your behalf regarding property and finances, and/or health and welfare. This is what is known as a Deputyship Order. As the court application can take several months, no one will be able to access your funds or make decisions on your behalf, which could cause difficulties if you have a mortgage or other financial obligations, which cannot be met until the correct authorities are obtained.

Advantages of an LPA

The advantage of having an LPA is that if an accident should happen and you were left in a position where you were unable to look after yourself financially or in terms of your medical care, you have the peace of mind of knowing that your wishes will be honoured and respected.

It is much easier to already have things in place ‘just in case’ you were to find yourself in a position to need them.

Have any questions? Just contact our specialised advisors for a free hour advisory appointment.

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