Everyone knows that a will ensures your wishes are carried out after your death, but how do you make sure your wishes are carried out within your lifetime?

A Lasting Power of Attorney (LPA) ensures that – if you become incapacitated – someone you trust can act on your behalf and make decisions about caring for you based on your wishes.

What is a Lasting Power of Attorney?

There are actually two! More on that in a moment. An LPA allows you to appoint someone who will be your legal representative if declining health means you unable manage your own affairs or communicate your wishes.

Whilst an LPA might be something you consider is more important as you get older, the scary reality is that a younger person can also become incapacitated. Anything can happen at any time. However, as you do get older, the risk of injury or illness is greater and therefore it becomes more urgent that an LPA is put in place. At AFPS we recommend that everyone seriously considers setting up a Lasting Power of attorney as a priority.

There are two types (and you really need both):

·      property and financial affairs attorney

·      health and welfare attorney

Being an attorney is a serious responsibility. Both types need to be registered, be over 18, have mental capacity, be financially solvent and be willing to take on the responsibility.

When you appoint an attorney, you can choose when they act, for example, only in particular circumstances, for instance if you suffered a brain injury or were experiencing cognitive decline.  The appointed individual is then able to act and can make decisions about your living situation, finances, health care and the sale of a home or other property.

You can appoint multiple attorneys and select whether they make decisions jointly and severally, or just jointly.

Jointly means decisions are made together.

Jointly and severally means both individually and together. You instruct which decisions can be made severally and which must be made jointly. You might specify small decisions which are fine to be made individually and larger decisions which must be made jointly.

An LPA allows you to leave instructions, which are legally binding, as well as preferences, which are not.

Instructions and preferences

Instructions are legally binding and can sometimes create problems when it comes time for the attorney to act, as they may limit the choices the attorney can make.

For example, you may state that you wish to remain in your own home, but an illness or injury has incapacitated you whereby you require ongoing care that cannot be given at home. Your attorney cannot go against your instructions and consequently, whilst you remain at home, you will receive inadequate care.

This is why completing LPAs online, without proper advice, can be fraught with difficulty. It is important to consult with an expert to ensure that any instructions are as clear as possible and unlikely to cause issues in the future.

Rather than lots of detailed and convoluted instructions, preferences can be used to express wishes. Preferences are not legally binding but offer guidance for your attorney; they do not have to adhere to them.

You cannot leave instructions or preferences for all eventualities, but they should help your attorney – who already has your best interests at heart – to make the right choices for you. Preferences and instructions can also help prevent others from questioning if the attorney is acting in your best interest.  The Court of Protection can cancel an LPA at any time if they believe the attorney is not acting in a person’s best interests.

Property and Financial Affairs Power of Attorney

This is an individual or group of people appointed to help you make decisions about finances such as:

·      paying bills

·      managing bank accounts and investments

·      selling or renting property

The person or people you choose can help at your discretion whilst you have capacity, and carry on or begin to manage your finances if you lose capacity.

If you have business interests, this LPA can ensure minimal disruption: you can state whose responsibility it is to authorise payroll, pay suppliers and all manner of things that keep your business going.

A huge misconception is that people lose access to their finances or control over their finances once the LPA is registered. This is not the case. You can choose to have your attorney help you make these kinds of decisions before you become incapacitated if you so wish. 

Health and Welfare Power of Attorney

This attorney can only act if you lose capacity. They are unable to do any decision-making prior to this. They make decisions relating to:

·      personal care

·      accommodation

·      medical care

·      life-sustaining medical treatment

The attorney must inform people involved in your care when they start to make decisions on your behalf, including friends and family, your doctor (or other healthcare staff), care workers or any social care staff.

What if you don’t have an LPA in place and you lose capacity?

In this scenario, your family will have to apply for a Deputyship Order at the Court of Protection.

Appointing a deputy can take a long, long time! Sometimes it can be as long as 18 months. It also costs a lot more than the LPA process. A non-professional deputy is usually a relative, whilst a professional deputy will be an individual solicitor or a trust corporation. The Court of Protection do try to select the person that they think will make decisions with your wishes in mind, but the person they choose may not be who you would have chosen.

So … why should everyone have an LPA?

The most important thing about an LPA is that it allows YOU to make the choices about your care and your finances. Having someone you know and trust to make those decisions is much better than a court official.

Additionally, having an LPA in place reduces the burden for your family and loved ones if you were no longer able to care for yourself. This burden can be financial as going to the Court of Protection to get a Deputyship Order is expensive. Not to mention the stress of potentially a six-month wait before a deputy is selected. A person losing capacity is hard enough without the worry that the family may not be able to make necessary decisions for them.

As well as choosing  a person you trust to make these important decisions for you, leaving instructions and preferences for your attorney offers them additional guidance and gives both of you peace of mind that they will be doing the right thing.

Our Power of Attorney Services are competitively priced because we believe that everyone should have an LPA in place. For further information call 01189 776064 or email us at info@afps.co.uk.