July 22, 2021

As much as we don’t want to think about our later years and what may happen, it’s vital for your peace of mind and for your family that you make sure provisions are made in case you can no longer make decisions for yourself. It could be a dementia diagnosis, a debilitating medical condition like cancer, or even a high-risk occupation. To make sure your wishes are taken care of, you need to create not just a will, but a Lasting Power of Attorney document too.

A Lasting Power of Attorney is one of the most important documents a person will make in their lifetime. It appoints someone to make decisions on your behalf should you be unable to do so. Even perfectly healthy people should consider making an LPA document. It means that in the event of an accident or illness, your affairs are being taken care of by someone you trust and can rely on to carry out your wishes.

But what is an LPA? Who needs one? And how do you go about creating one? Here are the answers to your most asked LPA questions.

Who should make an LPA?

The simple answer is – everyone. You don’t have to be in your 80s and suffering from declining health to draw up this incredibly important document. With the rise in the number of dementia cases (and sadly, the increase in what is termed ‘early-onset dementia’ in the under 60s), an LPA is increasingly important for everyone.

How does it work?

An LPA can be drawn up by your legal representative for you, or you can go online and use one of the many web-based services. In the document, you name the people you want to make decisions on your behalf if you become unable to make decisions for yourself. Your LPA can cover a range of topics, from financial decisions through to your welfare and care.

Are there different types of LPA?

There are two types of LPA. A property and finances LPA will give your nominated representative the right to make decisions such as whether to buy or sell property (including your own) on your behalf, taking care of your mortgage or rent payments, or making decisions on the maintenance and upkeep of your property.

A health and welfare LPA handles decisions such as where you live (including whether assisted living or full-time care is required), your medical treatment, even the clothes you wear and your daily activities.

When does it start?

An LPA can be activated at the point where you are unable to make your own decisions, known as ‘losing mental capacity’,   Or it can be created specifically to make certain decisions on your behalf, such as being placed in a care home and the financial arrangements for your ongoing care. You must draw this up while you still have the mental ability to do so to ensure your wishes are carried out once you are unable to make your own decisions.

Who can be an attorney?

You can nominate anyone as long as they are over the age of 18. If you want, or if you feel that one person alone may not represent your wishes as you’d like, you can choose more than one person. This is usually recommended by your legal advisor to ensure continuity of available help in the event that something happens to one attorney and you have lost capacity in the meantime.

If you’re not happy about offering the lasting power of attorney to a relative or friend then you can also choose a solicitor to act as your attorney. This may be the best course of action if your affairs and finances are particularly complex.

Do I need an LPA if I’m married?

It’s a common misconception that your spouse has automatic power of attorney if you are incapacitated. However, that’s not the case, and without an LPA in place, even your spouse would not be able to access your bank accounts or pensions, or make decisions about your healthcare.

Without a valid LPA in place, they would not have the authority to manage your affairs for you, and crucial decisions such as your healthcare or even your financial arrangements may be taken out of their hands. They could end up having to go to court to get control of your affairs, and even then that’s not guaranteed. This demonstrates the importance of making an LPA document, even if you are married.

What happens if I change my mind about who I appoint as an attorney?

You will need to revoke, or partially revoke, your LPA to change who you initially appointed as attorney. As when you wrote your original, you will need to have the mental capacity to make this decision.

Can an attorney make decisions about my life while I still have mental capacity?

No, while you have mental capacity your attorney must act only on your instruction. Even without mental capacity, an attorney must involve you in the decision-making process as much as possible, without pressurising or coercing you into decisions.

Do I need a will if I already have an LPA?

Yes, you do. An LPA is only applicable during your lifetime. The ‘power’ given dies with you and then your will takes over. You can appoint your LPA attorney as the executor of your will, but alternatively, you could appoint someone completely different, that decision is up to you.

What next?

Contact your legal expert to discuss setting up an LPA that represents your wishes. It could be a financial LPA or the health and welfare version, or both.

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