Do You Need A Lasting Power Of Attorney? Know The Pros & Cons

If you want control over your health and finances in the event of mental incapacity, a Lasting Power of Attorney (LPA) is a sensible and proactive step. This guide explains how LPAs work, their key advantages, the potential drawbacks, and how to set one up.

Key Takeaways

• A Lasting Power of Attorney (LPA) allows individuals to designate trusted attorneys to make health and financial decisions on their behalf if they become incapacitated.
• Having both a Health and Welfare LPA and a Property and Financial Affairs LPA ensures comprehensive coverage of personal and economic matters, protecting the individual’s preferences.
• Establishing an LPA avoids legal complications in decision-making during incapacitation and is advisable for all adults, not just the elderly, as health issues can arise unexpectedly.

Understanding Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document. It enables you, the donor, to appoint one or more attorneys to make decisions for you if you are unable to do so. Introduced in October 2007, an LPA is applicable only in England and Wales and can be created by any individual over the age of 18. There are two main types of LPAs: one for health and welfare decisions and another for property and financial affairs. Other legal documents, such as an advance decision and an advance statement, can also be used to express your wishes about future care and treatment.

Before LPAs were introduced in 2007, an enduring power of attorney (EPA) was used for financial decisions, and an ordinary power of attorney is a separate document for temporary financial management.

Each type of LPA serves a unique purpose, covering all aspects of your life. While the Health and Welfare LPA focuses on your personal and medical care, the Property and Financial Affairs LPA handles your financial matters, including property and expenses. This dual approach ensures that both your well-being and financial stability are managed according to your wishes.

Attorneys can be close friends, family members, or professionals such as solicitors or accountants, and you can appoint one or more people to act as your attorneys.

Health and Welfare LPA

A Health and Welfare LPA enables your appointed attorneys to make decisions about your healthcare and personal welfare when you are no longer capable of doing so yourself. A health and welfare attorney is responsible for making certain decisions about your welfare, including your daily routine, such as washing, dressing, and eating. This can include choices about your living arrangements, medical treatment, life-sustaining treatment, and daily care routines. Care providers must follow the instructions set out in the LPA to ensure your wishes are respected.

Crucially, this type of LPA only comes into effect when you lose mental capacity, ensuring that your preferences are respected when you are most vulnerable.

Property and Financial Affairs LPA

A Property and Financial Affairs LPA allows your attorneys to manage your financial matters as soon as it is registered, provided you consent. This includes decisions about your property, investments, and expenses, helping maintain financial stability. Attorneys are responsible for managing the donor’s money, including handling bank accounts, paying bills, and making financial transactions such as selling property or shares. It is essential that attorneys keep the donor’s property separate from their own assets to safeguard the donor’s money and avoid conflicts of interest.

Unlike the Health and Welfare LPA, this type can be used immediately or held in readiness, giving you flexibility and control over your affairs.

Why You Might Need a Lasting Power of Attorney

Having a Lasting Power of Attorney (LPA) in place offers significant benefits:

• It simplifies the process of managing your affairs if you become incapacitated, providing ease and reassurance for both you and your loved ones.
• Anyone over 18 with mental capacity can create an LPA, making it a prudent step for all adults, not just the elderly.
• Setting up both a Health and Welfare LPA and a Property and Financial Affairs LPA ensures comprehensive coverage.
• It is important to plan ahead so your wishes are followed if you are unable to make decisions yourself.

Creating an LPA is a straightforward process that involves selecting your attorneys, completing the necessary forms, and registering the LPA with the Office of the Public Guardian. This legal document ensures that your chosen individuals have the authority to make decisions on your behalf, including making decisions about your social care and other important matters if you lose capacity, avoiding potential legal complications and ensuring your wishes are followed.

Planning for Future Incapacity

Planning ahead provides peace of mind that your preferences will be upheld if you lose mental capacity. You can also make an advance decision or an advance statement to record your wishes about future medical treatment and care. This is not just for the elderly; anyone can face unexpected health issues, making it vital for all adults.

Although preferences set by donors are not legally enforceable, they provide valuable guidance. That said, if you have specific expectations, it’s best to set them as binding instructions. Otherwise, attorneys may interpret them differently.

Avoiding Legal Complications

Without an LPA, next of kin lack automatic authority to make healthcare decisions. This can lead to serious delays in accessing life-sustaining treatment or managing finances.

One of the biggest advantages of having an LPA is that it removes this ambiguity, allowing trusted individuals to act quickly with legal backing, rather than leaving decisions to professionals who may not know your preferences.

In some cases, families may need to apply to the Court of Protection, which is time-consuming and stressful. An LPA avoids these hurdles entirely.

If attorneys are unsure about their responsibilities or face disputes, they can seek attorney contact with relevant authorities for guidance.

How to Create a Lasting Power of Attorney

Creating a Lasting Power of Attorney involves several key steps:

1. Choose your attorneys (individuals you trust to act in your best interests).
2. Complete the necessary forms, detailing your preferences and instructions for your attorneys.
3. Register the LPA with the Office of the Public Guardian.

This process can take 8 to 10 weeks, provided there are no errors in the application.

These steps guarantee your chosen attorneys have the legal authority to manage your affairs, thus avoiding potential legal complications and respecting your wishes.

Choosing Your Attorney

Selecting the right attorney is crucial for ensuring that your wishes are respected and your best interests are prioritised. Your chosen attorney must be at least 18 years old and have the mental capacity to make decisions.

If you need to change your attorney, you must revoke the current LPA and create a new one.

Completing and Registering the Forms

Completing and registering the LPA forms is a straightforward process but requires attention to detail. Without an LPA, your loved ones may face legal hurdles, such as needing to apply to the Court of Protection to make decisions on your behalf.

The registration process can take between 8 to 10 weeks, so it’s essential to ensure that the forms are completed accurately to avoid delays.

Responsibilities of an Attorney

An attorney’s responsibilities are defined by the type of LPA and the specific conditions set by the donor. They must act in the donor’s best interests and according to their wishes. When the donor is unable to make decisions themselves, attorneys are responsible for deciding on important matters regarding health, welfare, or treatment. Attorneys can only make decisions they are authorised to make and must keep a clear separation between the donor’s assets and their own. Misunderstandings about LPAs can lead to confusion, making it crucial for attorneys to understand their responsibilities clearly.

Attorneys must also keep accurate financial records of their dealings with the donor’s affairs and notify the Office of the Public Guardian if they disclaim their responsibilities. They are accountable to the Office of the Public Guardian, which can investigate if attorneys act beyond their powers.

Acting in Best Interests

Attorneys must always act in the best interests of the donor, prioritising the person’s welfare and preferences, ensuring that supporting decisions reflect what the donor would have wanted. This involves considering the donor’s preferences and values, which can include personal choices about living arrangements and treatment decisions and care and treatment decisions.

Prioritising the donor’s wishes helps attorneys avoid disputes among family members.

Managing Finances and Property

Under a Property and Financial Affairs LPA, attorneys are responsible for:

• Managing the donor’s finances, including paying bills
• Managing investments
• Making gifts in certain circumstances
• Maintaining detailed records of all financial transactions
• Ensuring a clear separation between the donor’s assets and their own.

Preferences and Instructions in an LPA

Donors can include preferences and instructions in their LPA to help guide their attorneys’ decisions. Preferences are general wishes that donors would like their attorneys to consider, while instructions are legally binding rules that attorneys must follow. These might include limits on financial decisions or requirements for joint agreement on certain actions.

It is important to note that some powers of attorney, such as enduring powers of attorney, do not cover health and welfare decisions; they are limited to property and financial matters. When creating an LPA, you should specify whether you want it to cover health and welfare, property and finance, or both, to ensure your wishes are fully addressed.

Setting out preferences and instructions in this way helps ensure decisions align with the donor’s values and expectations. It also gives attorneys a clearer framework to follow, reducing uncertainty.

Setting Preferences

Preferences allow donors to express how they’d like their attorneys to act. This can include choices about living arrangements, medical care, or whether attorneys should act jointly or independently. While not legally binding, attorneys are expected to take them into account.

Imposing Instructions

Instructions are legally enforceable and must be followed by attorneys. These may include specific steps attorneys must take or avoid when acting on the donor’s behalf. However, the Court of Protection can override any instruction if it’s not considered to be in the donor’s best interests.

Ending or Changing a Lasting Power of Attorney

If you want to change or end your lasting power of attorney, specific procedures must be followed:

• The donor needs to provide a written deed of revocation to the Office of the Public Guardian along with the original LPA.
• If an attorney becomes incapacitated, the LPA can end automatically.
• The Court of Protection holds the authority to disregard instructions within the LPA if they conflict with the donor’s best interests.

These processes ensure that the LPA remains a true reflection of the donor’s current wishes and needs.

Cancelling an LPA

A donor can cancel a lasting power of attorney at any time, as long as they have the mental capacity to do so. To cancel an LPA, the donor must notify the attorneys and the Office of the Public Guardian, who will then complete the cancellation process.

Making Changes

A lasting power of attorney can be changed by the donor to reflect their current wishes and needs. To make changes, the donor must follow specific procedures, including notifying their attorneys and the Office of the Public Guardian.

Common Myths About Lasting Powers of Attorney

Despite the importance of Lasting Powers of Attorney (LPAs), several myths persist that can deter people from setting one up. One common misconception is that next of kin automatically have the authority to make healthcare decisions, which is not legally recognised. Another myth is that LPAs are only necessary for the elderly, discouraging younger adults from planning for potential incapacity.

It’s also important to know that individuals can use legal documents such as an advance decision to refuse treatment they do not want in the future, ensuring their wishes are respected even if they lose capacity.

Understanding the truth behind these myths is crucial. LPAs are designed to ensure your wishes are followed and provide a structured approach to decision-making, irrespective of age. Addressing these misconceptions can help more people recognise the necessity of an LPA.

Myth: Next of Kin Automatically Make Decisions

One common myth is that a family member can automatically make decisions for a person who cannot do so themselves if they lack mental capacity. For example, in reality, next of kin do not have automatic decision-making rights without an LPA, and individuals should be empowered to make their own decisions.

Lasting Powers of Attorney and Enduring Powers are essential to maintain control over decision-making and ensure that your healthcare and personal welfare decisions are made according to your wishes.

Myth: LPAs Are Only for the Elderly

Many people mistakenly believe that LPAs are only necessary for older adults, which is a significant misconception. Unexpected health crises can happen at any time, making it crucial for individuals of all ages to have an LPA in place. Planning ahead provides peace of mind and ensures that decisions can be made according to one’s preferences, irrespective of age.

How MJR Solicitors Can Help

At MJR Solicitors, we make the process of setting up a Lasting Power of Attorney clear and stress-free. Our friendly team will explain your options and guide you through every step, including:

• Choosing suitable attorneys
• Drafting preferences and instructions
• Completing and submitting the paperwork
• Avoiding errors or delays in registration

We can also help you update or cancel an existing LPA, and offer legal support if you’re acting as someone’s attorney. Whether you’re planning ahead or supporting a loved one, we’re here to ensure your decisions are protected and respected.

Ready to take the next step?

Get in touch with MJR Solicitors today for expert, straightforward advice on setting up your LPA. It’s never too early to protect your future

Summary

In conclusion, a Lasting Power of Attorney (LPA) is an indispensable legal document that ensures your healthcare and financial decisions are managed by trusted individuals if you become incapacitated. By understanding the different types of LPAs and their specific purposes, you can make informed decisions that safeguard your future.

Setting up an LPA involves clear steps: choosing a suitable attorney, completing the necessary forms, and registering with the Office of the Public Guardian. With an LPA in place, you can avoid legal complications, ensure your wishes are respected, and provide peace of mind for yourself and your loved ones. Don’t let myths or misconceptions deter you from taking this vital step in future planning.