Why you should have a lasting power of attorney

What is lasting power of attorney?

In the most basic terms, a lasting power of attorney is a legal arrangement that will safeguard your best interests by allowing a trusted individual to make decisions for you, should you lose the ability to do so for yourself. By appointing one or more persons you trust as an attorney, they will have the legal authority to take over the handling of your affairs, either at the point you give permission for certain matters, or otherwise in the event of losing your decision-making ability. You can also decide whether your attorneys can act independently of each other (jointly and severally) or whether they must all act together (jointly).

When we think of what circumstances could bring about reduced mental capacity in the future, many of us will think of dementia or an injury to the brain as the most likely possibilities. But even if you believe you will not encounter either of those scenarios, it would also be wise to consider the likelihood of a stroke, the onset of a different kind of mental illness, or losing consciousness and being put into a coma. In the event of any of these reduced mental capacity scenarios, having a lasting power of attorney would help ensure that your best interests are protected.

The specific decisions to be made on your behalf in such circumstances would include:

• The handling of your money in relation to any debts, bills, investments, pensions or benefits
• The medical or domestic care you may require
• The management and possible sale of assets such as your home

What are the different types of lasting power of attorney?

If it was confirmed before October 2007, some people will still have an arrangement known as enduring power of attorney. Otherwise, today there are two types of lasting power of attorney that you can arrange:

LPA for property and financial affairs

With this arrangement, your attorney(s) would be in charge of looking after your money and property. They would be able to arrange paying your bills and debts, sell your home, manage your investments, and have access to your bank or building society accounts.

A property and financial affairs LPA can be used if you have reduced mental capacity, but you can also give permission for it to take effect at other times (general power of attorney), such as if you know you are going to be unable to handle these matters for a time (e.g. if you were to undergo surgery). The legal documents for general power of attorney and lasting power of attorney must be made separately. General power of attorney is usually only a short term solution and ceases to be valid once the person who has made it (the donor) loses their mental capacity.

LPA for health and welfare

Unlike the property and financial affairs options, this arrangement will only come into effect if you are confirmed to have reduced mental capacity and cannot make your own decisions. A health and welfare LPA will give your attorney(s) the legal authority to make fundamental choices about your life. Amongst other permissions, they can dictate where you live, what you eat, who you have contact with, and what medical care you receive.

You can also choose, while your mental capacity permits, whether your attorney(s) can decide whether or not you will receive life-saving treatment.

What happens if you don’t have a lasting power of attorney?

If you lose your decision-making ability without a lasting power of attorney in place, these decisions may be left to the Court of Protection to decide on your behalf. Your spouse, partner or next of kin will not automatically become your attorney. If the Court of Protection agrees that you do not have the mental capacity to make decisions, they could choose a deputy to take care of these matters for you, and they could also make some specific decisions about your property, finances and care.

Although your loved ones can apply to become deputies, there is a risk that the Court of Protection could make a decision that does not align with your wishes or best interests. Not only that, but working with the Court of Protection can make the process much longer, create more difficulties making changes to the arrangements, and incur more fees.

Naturally, you would wish these matters to be handled by someone you can trust, and who you are certain has your best interests at heart. After all, everything from your money to your basic living conditions may eventually be determined by your attorney(s).

When making a power of attorney, you will need to consider the following:

• Who you would want to appoint as your attorney. This must be somebody that you can trust and rely on and could be a family member, friend or professional such as a solicitor.
• Whether you would want your attorneys to act jointly or jointly and severally.
• Whether you would want to include any restrictions in the document.
• Whether you would want your attorney to make decisions regarding your property and finances, health and welfare, or both.

There may well be other issues that you may need to consider, our experienced legal team will be able to guide you through this process step-by-step.