The Importance of having a Lasting Power of Attorney in Place

According to the Alzheimer’s Society, there is an estimated 850,000 people in the UK with Dementia, with numbers set to rise to a staggering figure of 1.6 million by 2040. With these figures in mind, it is becoming increasingly important that you make clear what should happen in the event that you lose capacity to manage your own affairs.

Lasting Powers of Attorney (LPAs) are documents in which you (the Donor) give legal authority to the people you select (your Attorneys) to make decisions on your behalf, or to help you make decisions, should you become unable to, due to loss of mental capacity.

There is no automatic right for your next of kin to step in and help with your affairs following a loss of mental capacity if you have not made LPAs. In most cases, Banks, the medical profession, Government departments, carers and many others will often refuse to deal with next of kin without the legal authority conferred by LPAs.

There are two types of LPAs, which can be made whilst you still have the mental capacity to do so:

1. Financial and Property Affairs: this allows your Attorneys to manage things such as paying bills, managing investments and selling property.

2. Health and Welfare: this allows your Attorneys to make personal decisions such as where you live, what care you receive and ultimately, whether to turn off the life support machine. However, Attorneys can only make these decisions when you lack mental capacity.

Who should I appoint to be my Attorney(s)?

You should select people that you trust to act on your behalf and who have the appropriate ability to manage your affairs. You can appoint more than one Attorney, and you can appoint them to always act together (jointly) or together and separately (jointly and severally).

You may also wish to appoint a replacement Attorney(s) in case your Attorney(s) cannot act for any reason.

What happens if I lose capacity and have not made a LPA?

If you have not made a LPA before you have lost mental capacity then an application for a Deputyship Order would be necessary by your friends/family. The Court of Protection appoints a ‘Deputy’ to make decisions on your behalf. This may not be the person you would have chosen, had you appointed your own Attorneys.

The Deputy will be subject to ongoing supervision by the Court which incurs an annual fee. Applying for a Deputyship Order can take several months, meaning no-one can deal with your affairs until this has been granted. Not only can it take a long time to be granted with one, but it is considerably more expensive than the cost of making a LPA and can add emotional pressure to your loved ones at an already difficult time by having to make a court application.

If you require any advice in relation to the above, please do not hesitate to contact Carla Brown on Carla.brown@ellisjones.co.uk or 01202 057716.