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Lasting Power of Attorney - The What And Why

Thinking about what would happen if our mental faculties deserted us is an uncomfortable thing to face, but it's important to think about  when writing your will. While a lot of people think a lasting power of attorney is an unnecessary formality, it's important to consider how much worse the situation could be for you and your family if you had a stroke, a serious accident or began suffering from dementia or Alzheimer's without having appointed a lasting power of attorney first.

24 March 2015
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What Is A Lasting Power of Attorney?

If someone has difficulties that mean they are struggling to make decisions - or can't make them anymore, then they will need help and support managing their finances, along with any healthcare needs. This is where a lasting power of attorney comes into play. A lasting power of attorney (or LPA) is a legal document in which the person concerned, while still in good health, created to nominate a trusted relative or friends to take care of their affairs if they are unable to. Traditionally there are 2 types of power of attorney, one who is appointed to deal with financial and property aspects and one for healthcare. You can appoint one person per role, or one person to take care of both if you wish. The processes for appointing a LPA and them coming into effect is similar for both types, but for a medical LPA the appointed person can only make decisions once you have lost mental capacity, not before.

A lot of people get nervous about losing control of their lives when they nominate a LAP, but that isn't the case. Your LAP only comes into effect when you lose your mental capacity, or even before if you specify the parameters. For example, if you were to be involved in a car accident and slip into a coma, your LAP would start taking care of your finances and making medical decisions for you while you were incapacitated. However, if you were to wake up from that coma, you are able to start making decisions for yourself again. 

What Is Mental Capacity?

We've been throwing this term 'mental capacity' around, but what exactly does it mean? To put it simply, when you lose your mental capacity, you lose the ability to make decisions for yourself some or all of the time. There are a number of reasons someone might lose their mental capacity, including learning disabilities, dementia, mental health problems, brain injuries or a stroke. It's important to note here that living with a mental health problem such as depression or bipolar disorder is not classified as lacking mental capacity. The Mental Capacity Act of 2005 states that a person is unable to make a decision if they can't do one of the following;

  • Understand information relevant to a decision

  • Retain that information long enough to make the decision

  • Use or weight the up the information in decision making

  • Communicate the decision they have made

Why Should I Appoint A Lasting Power of Attorney?

Of course the best time to act and appoint a lasting power of attorney would be before you lose mental capacity.  If you lose your mental capacity before you have legally appointed your LAP, your loved ones could face a lot of difficulties in the future. As well as running up costly legal bills to deal with your affairs, there are time and worry issues, and you cannot guarantee the courts making decisions for you are acting in the manner you would want. By appointing a lasting power of attorney, you are ensuring that someone you trust will be carrying out your wishes when you are not able to. Setting up a LAP is quick and easy to do, and doesn't cost a fortune. For more information, or help in setting up a lasting power of attorney for yourself, just give us a call for a free consultation. Remember - the biggest mistake you can make is assuming the issue won't affect you, because once you've lost your mental capacities it's too late to appoint a lasting power of attorney and make your wishes known.