Why Planning Ahead Matters: A Personal Perspective on Lasting Powers of Attorney
Amy Cook is a Paralegal in the Court of Protection team and has been supporting individuals and families for around nine months who need assistance managing property and finances where someone lacks mental capacity. Through both her professional work and a recent personal experience, she has seen how important it is to plan ahead – and how much difficulty can arise when the relevant planning has not been put in place.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows you (the ’donor’) to decide who will manage your affairs if you lose mental capacity, or if you feel that managing matters yourself has become overwhelming or confusing. Most importantly, an LPA gives you control over your future. It is about protecting your wishes, easing the burden on loved ones, and preventing avoidable stress at an already difficult time.
A personal perspective
Amy has experienced the impact of this first-hand. When her grandfather was admitted to hospital following a stroke, the family quickly realised that he did not have a registered LPA in place and was rapidly losing capacity. Although he had drafted an LPA, it had not been signed or registered.
Fortunately, he was still able to make a mark to ‘sign’ the document. However, arranging the correct witnesses, coordinating family members and preparing the necessary documentation at short notice caused added stress at an already difficult time. Sadly, he passed away before the LPA ever needed to come into force. However, the experience highlighted to the family the importance of creating and registering an LPA ahead of time.
Types of LPA
There are two types of LPA: property and financial affairs, and health and welfare.
A property and financial affairs LPA can be used in two situations:
- As soon as it is registered, meaning your chosen attorneys can assist you with decisions while you still have capacity (with your consent), or
- Only once capacity is lost.
While the second option may seem appealing, it can lead to practical difficulties. Evidence of loss of capacity may be required each time a decision needs to be made, which can slow the process considerably, particularly where multiple or urgent decisions are involved.
A health and welfare LPA can only be used once it is registered and the donor no longer has capacity.
Once registered, an LPA operates automatically if you lose capacity suddenly, ensuring that trusted individuals (your ‘attorneys’) can step in without delay.
Capacity
Although no one plans to lose capacity, there are many reasons why it may happen unexpectedly, such as
- Illness
- Accidents
- Age related conditions e.g. dementia
All of these can affect a person’s ability to make decisions. The key point to remember is that an LPA can only be created while you still have mental capacity. Once capacity is lost, an LPA is no longer an available option.
Deputyship
If you lose capacity without an LPA in place, an application must be made to the Court of Protection for a deputyship order so that someone can make decisions on your behalf. While this does provide a solution, the process can be lengthy, costly, and stressful for families.
Disagreements may arise over who should act, and ultimately the court will decide. An LPA avoids this by clearly setting out your wishes from the outset.
Creating an LPA
Having an LPA professionally drafted offers reassurance, clarity, and peace of mind. You can choose who you trust to be your attorneys and make decisions for you, include preferences and instructions as to how and when you want your attorneys to act, and significantly reduce the risk of disputes or administrative problems.
Although it is possible to draft an LPA without professional advice, errors can invalidate the document and lead to additional costs, delays, and stress. If an error comes to light after you have lost capacity, then the only option would be to apply for a deputyship.
How we can help
At Trethowans, we provide clear, no nonsense advice and ensure every question is answered, so you can be confident your wishes are properly protected.
We also guide clients through the important decision of who to appoint as an attorney, ensuring they understand the responsibilities involved and can make informed choices.
If you are considering creating a Lasting Power of Attorney, our Private Client team would be happy to guide you through the process.
If you require assistance with a Court of Protection application, our specialist Court of Protection team can also advise or support you every step of the way.
Planning ahead now can make all the difference later.
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Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
