Lasting Power of Attorney – making the right choices for your future

On behalf of Attwaters Jameson Hill posted in Trusts & Probate on Tuesday, August 14th, 2018

Last summer retired judge Denzil Lush caused consternation amongst many people and much publicity by saying that he had concerns about the creation of a Lasting Power of Attorney (LPA). His view was that LPAs could be open to abuse. He preferred the alternative of Deputyship, a process that requires application to the Court of Protection which gives rise to added administration and extra cost and takes time to put in place.

LPAs have become much more common in the last decade, not least because TV finance guru Martin Lewis has said that although he’s only in his forties, he has one and believes everyone should think about making one to safeguard themselves and their families.

How LPAs work

An LPA is designed to protect you if you lose the ability to make financial or care decisions on your own behalf. Making an LPA allows you to choose someone you know and trust, called your ‘attorney’ to make important decisions should you be unable to do so.

A simple process that gives peace of mind

There are two types of LPA, one covering property and financial matters, the other dealing with health and welfare.

  • Property and Financial Affairs. Here your attorney has the power to make decisions about money matters on your behalf, if you are unable to do so. This includes running bank accounts, accessing and managing pensions and funds in drawdown, paying bills and selling property.
  • Health and Welfare. Here the attorney has the power to make decisions on the donor’s behalf regarding things such as the donor’s daily welfare (washing, eating etc.), medical care, whether to move into a care home, and potentially life-sustaining treatment, should the donor elect this.

You can choose to make one or both types. You will need to appoint one or more people to be your attorney(s); these can be relatives or friends, your husband or partner, or a professional adviser such as a solicitor. Without an LPA in place, your friends and family don’t have the legal right to step in and take decisions on your behalf, they would need to apply for Deputyship to the Court of Protection.

What safeguards are there?

An LPA can’t be used until it has been registered with the Office of the Public Guardian. Health and Welfare LPAs can’t be used until the donor lacks capacity. If you make a Property and Financial Affairs LPA, you can include a restriction meaning that it can’t be used until you have lost capacity. Furthermore, you can restrict the powers the attorney has and tailor the document to suit your particular wishes and concerns.

The application process contains safeguards. An independent third party needs to provide a certificate confirming that the donor is fully aware of how an LPA operates and that they are not being pressurised into making it. Everyone signing an LPA must confirm that they will follow the principles set out in the Mental Capacity Act Code of Practice.

However, the most effective safeguard lies in the donor making the right choice of attorney.

How to choose an attorney

You need to pick someone you can trust, who knows you well enough to be able to make the right decisions on your behalf and act in your best interests. You can of course appoint more than one attorney and decide if you would like them to act jointly, meaning that they must all agree on any decision that needs to be made on your behalf, or severally, meaning that they can make a decision on their own. It’s also a good idea to pick replacement attorneys who could step in if your main attorney(s) can no longer act for you.

Attorneys don’t have to be family members or friends. Many people choose a professional attorney, so that they don’t have to burden those close to them with the task of making the right choices in difficult circumstances.

We believe that despite the judge’s comments, an LPA that is arranged and administered correctly is still the best tool to provide peace of mind. If you’d like to discuss putting one in place, call us on 0330 221 8855 or contact us online.

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