The importance of Lasting Powers of Attorney
A recent survey of 2,000 UK residents by Which found that while 85% of respondents knew what a Lasting Power of Attorney (LPA) was, only one in seven people had one in place. The survey goes on to summarise the reason for the low take up was a poor understanding of what an LPA is combined with a system that is ‘outdated’ and ‘difficult to navigate’.
In her latest article Qualified Paralegal, Kate Norris discusses LPAs, the misconceptions, and the benefits of having an LPA.
The misconceptions
There are many misconceptions about the use of LPAs but the two most common are that people incorrectly believe they lose access to their financial accounts once the LPA is registered and that an LPA can be created at any time during a person’s lifetime, not realising that it cannot be done once mental capacity has been lost.
There are two different types of LPAs. Under the LPA for Property & Financial Affairs, while you still can make your own decisions, you can ask your attorneys for help with your financial matters, for example, to sign documents for you or go into the bank on your behalf. Your attorneys would only take over if you were ever to lose the ability to make your own decisions about your finances.
With an LPA for Health & Welfare, your attorneys would only be able to act if you were unable to make health and welfare decisions yourself.
If you lose mental capacity to make your own decisions without an LPA in place, your loved ones will have to apply for a Deputyship Order at the Court of Protection. It is a significantly more costly and complex application than making LPAs. The Deputy is accountable to the Court on an ongoing basis and an annual supervision fee applies. Applying for a Deputyship Order also takes considerably longer than registering an LPA.
The benefits of an LPA
You can appoint someone you trust
An LPA gives you peace of mind that someone you know, and importantly trust, oversees your affairs. Without an LPA in place, it is left up to the Court to approve who should make decisions on your behalf if you lose mental capacity.
Access to money when needed
If you are the primary earner and you became incapacitated it is likely that your partner, children, or friends would need urgent access to your bank accounts to ensure essential bills continue to be paid.
In the long term, they would also need the authority to make big financial decisions, such as dealing with investments or selling / buying your home. An LPA protects your loved ones from entering a legal limbo where they cannot make these crucial decisions.
You can leave instructions
Having an LPA in place means you can leave instructions for your loved ones. If an attorney is presented with a choice, they can follow any instructions you have left in your LPA, which would be legally binding. You can also include your preferences in certain matters, which would not be legally binding but would express your wishes.
So, if there is a particular care home you would like to go to, or you have a specific preference on how your property or investment should be dealt with, you can spell this out in your LPA and those wishes can be followed even if you have lost mental capacity.
Peace of mind
Think of LPAs as if they were an insurance policy. Once you have made LPAs and the documents have been registered, you can simply file them away and enjoy the peace of mind that comes with knowing that if anything should happen, they are in place to make things easier for you and for your loved ones.
We insure all aspects of our daily lives in case the ‘worst’ should happen, so why not our ability to make decisions?
What is the process of putting LPAs in place?
LPA documents have to be signed by you and your attorneys and should then be registered by the Office of the Public Guardian (government body dealing with LPAs). LPAs are only valid and ready for use once they have been formally registered.
Although it is not strictly necessary to have LPAs registered straight away, it is highly recommended to do so as soon as the documents have been signed. In the recent guidance issued by the Office of the Public Guardian, it can now take up to 15 weeks if not longer for the documents to be registered.
To discuss making a Lasting Powers of Attorney or if you have any questions, please get in touch with Kate Norris on 01225 750055 or email kate.norris@mogersdrewett.com.