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Is Now the Time for a Lasting Power of Attorney?

If you are ever asked: “When is a good time to make a will?”, replying: “Before it’s too late” would be a strong answer. The same principle applies to a lasting power of attorney (LPA). To explain, let’s start with a quick look at what exactly is meant by the term ‘LPA’.

14 December 2016
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An LPA is a legal document that allows someone (the ‘donor’) to appoint one or more people (known as the ‘attorneys’) to help the donor make decisions or, indeed, to make decisions for the donor.

There are two types of LPA – ‘health and welfare’ and ‘property and financial affairs’. In both cases, LPAs help ensure you have as much control as possible over decisions that will affect your future, even when circumstances mean you cannot make those decisions alone or, perhaps, at all. Accident or illness, for example, might mean you no longer have the mental capacity to make important decisions. That’s why timing is critical. None of us know what tomorrow might bring and, by definition, it’s too late to make an LPA when, for whatever reason, you have already lost the mental capacity to make your own decisions.

An LPA is likely to bring you and your family peace of mind, reducing the chances of costly future disputes – costly in financial, psychological and emotional terms. You can appoint someone you trust to execute your wishes when you have lost the capacity to do so yourself.

Consulting a solicitor about whether now is the time to make an LPA might, therefore, be a very prudent idea. Although none of us know what tomorrow will bring, we do know the chances of facing conditions, such as dementia, that can impact our memory and mental abilities, increase as we grow older.

Let’s look at the two types of LPA. A ‘health and welfare’ LPA gives an attorney the power to make decisions on matters such as the donor’s daily routine (in areas including washing, dressing and eating) and medical care, as well as matters such as whether the donor should move into a care home or undertake life-sustaining treatment. A ‘health and welfare’ LPA can only be used when the donor cannot make his or her own decisions.

A ‘property and financial affairs’ LPA, however, can be used – with the donor’s permission – as soon as the document has been registered. This type of LPA gives an attorney the power to make decisions regarding the management of the donor’s bank or building society account/s, paying the donor’s bills, collecting benefits or a pension and whether the donor should sell his or her home.

Making an LPA is not an irreversible move. As long as the donor still has the capacity to make decisions, an LPA can be cancelled or revised (for example, removing one of the attorneys). Ending an LPA requires making a written statement called a ‘deed of revocation’, whilst revising an LPA requires a ‘partial deed of revocation’.

An LPA ends automatically when the donor dies, at which point the donor’s affairs are looked after by the executors of the will or other personal representatives, not the LPA’s attorney/s.

Thinking about losing your mental capacity – just like thinking of death when preparing a will – can be very distressing but please don’t just ignore LPAs. Hopefully, your mental abilities will never diminish at all but, if the worst does happen, don’t you want to be prepared?