Why would I need an LPA and how
can it help me?
Lasting Powers of Attorney (LPAs) are a hugely important tool for making sure your interests and affairs can be protected if you lose mental capacity.
LPAs allow the person making them, known as the donor, to appoint trusted individuals, called attorneys, to make decisions for them. The attorneys would help if the donor became unable to make certain decisions themselves. Decisions might relate to property and financial affairs (such as managing a bank account or selling a house), or health and welfare (including whether to agree to medical treatment or where the donor should live). Attorneys might only need to make decisions on a short term basis, for example, if the donor falls ill but then recovers, or this may be a more permanent solution.
There are various misconceptions around who should make an LPA and when. Many people think that they are only relevant for older people, or if someone has been diagnosed with a condition, such as dementia. People also often say that they are worried about giving up control to someone else. However, as I'll explain, creating an LPA actually allows you to retain control and prepare for the future.
An LPA will only be legally valid if the donor has mental capacity at the time of making it. This means that they must understand the nature of the LPA and the powers that it will give to the attorneys. The donor must make the LPA willingly and not be put under any pressure to sign it.
If mental capacity is lost, it becomes too late to make an LPA. However, losing capacity could happen suddenly, for example, due to an accident or stroke. If there is no LPA in place, the only option to manage a person’s financial affairs may be a long and costly application to the Court of Protection, where a judge will ultimately decide who should act for you and what decisions you can make. Health and welfare decisions will be made by healthcare professionals, who will be required to make decisions which they deem to be in your best interests, but this may not be in line with your wishes or beliefs.
So how can an LPA help you take control?
1. Make your LPA when you are fit and healthy and there is no question about mental capacity. Hopefully your attorneys will not need to use it, but it will be ready if they do. Think of it like an insurance policy, protecting you in the event that something unexpected happens.
2. Choose who can make decisions for you. You can appoint primary attorneys and replacement attorneys. You can decide who acts when, including the order that replacement attorneys step in, and whether your attorneys act jointly or jointly and severally. This allows you to appoint people who you trust to follow your wishes.
3. Have your say in important decisions by including guidance or instructions in the LPA itself or with a separate letter of wishes. This way you can ensure that your wishes are clear.
4. Make sure your LPA is registered. An LPA needs to be registered before it can be used. This is also an opportunity for any issues with the LPA (such as clauses that might not be effective) to be highlighted by the Office of the Public Guardian who are responsible for registering LPAs.
5. Keep your LPA under review, as you should also do with a will. Circumstances may change meaning someone you have chosen can no longer act, or you want to appoint different attorneys. It is important that once the LPA has been created, it remains fit for use.