Legal expert from Tallents Solicitors, Newark, explains benefits of a lasting power of attorney and the risks of the alternative
A Lasting Power of Attorney (LPA) is a legal document which ensures that if you (the donor) became unable to act or carry out wishes for yourself, that someone you legally appoint (your attorney) can act on your behalf, writes Georgia Mills of Tallents Solicitors.
LPAs must be made whilst you have the required mental capacity to understand the nature of the document that you are putting in place.
These legal documents outline your wishes in the event your mental health declines or you lose the physical ability to communicate your decisions.
There are two types of Lasting Powers of Attorney, a Property and Financial Affairs LPA and a Health and Welfare LPA.
Property and Financial Affairs LPA - your attorney can act on your behalf on matters relating to your property and financial affairs. This type of LPA also allows your attorneys to assist you with financial aspects at your discretion, while you still maintain your mental capacity and ability to communicate.
A Property and Financial Affairs LPA covers property and finances including, but not limited to, your bank or building society accounts, your investments, pensions or benefits, paying your bills, or even buying, selling or maintaining your property.
Health and Welfare LPA - your attorney can carry out your wishes related to your healthcare and daily routine. For example, this may include where you live, how you dress, medical care, medical treatment and your diet.
When setting up a Health and Welfare LPA, you will decide whether to give your Attorneys the ability to make ‘Life-Sustaining Treatment’ decisions such as receiving antibiotics, having an operation, and can even include whether you stay on artificial life support.
I’m healthy, so why do I need LPAs setting up now?
LPAs are important for every adult to have as it’s impossible to predict when something may happen which will affect your physical and mental ability to carry out and communicate your wishes.
Providing you are over 18 years old, you can have an LPA. There is no maximum age to prevent you making an LPA, however, you must be capable of making and expressing your own instructions to put LPAs in place.
Due to the possible complexities of setting up an LPA, along with the lengthy nature of the LPA document itself, it is strongly recommended that an experienced solicitor draws them up for you, so that you know the LPA is set up correctly and in accordance with your wishes.
Is there an alternative to Lasting Powers of Attorney?
An alternative to an LPA is a ‘deputyship order’, but this should really be seen as a last resort if LPAs have not been put in order.
Like an LPA, there are two types of deputyship orders: Property and Financial Affairs and personal welfare. However, unlike an LPA, a Health and Welfare Deputyship order is only granted in a small number of circumstances and they are quite rare.
A Property and Finances Deputyship order requires a sizeable amount of evidence regarding the finances of the individual who lacks capacity, along with evidence from the applicant to prove they are a suitable candidate for the role of deputy.
There are further significant downsides to the deputyship route:
The process is expensive compared to the costs of setting up LPAs, as a deputyship application includes a court fee, an assessment fee for each applicant, hearing fees (if required) and potential appeal fees.
There are also additional fees payable for the court to assess the level of general supervision a deputy need.
The appointed deputy will be under annual supervision for the duration of the deputyship. The deputy’s decisions must be noted, along with the steps taken on reaching this decision, plus a report to the court must be presented annually.
There are also additional fees payable for the supervision of the deputy by a court appointed representative.
Without LPAs in place, you cannot assume that your next of kin or close family members will be able to act and carry out your wishes about your property and finances, or your health and welfare on your behalf.
Next steps
We recommend that every adult should make Lasting Powers of Attorney as soon as possible.
Tallents Solicitors has successfully drawn up thousands of LPAs for clients and can help you with yours. For more details, call 01636 671881.
