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:

• Managing your finances, including debts, bills, investments, pensions, and benefits
• Arranging medical or domestic care
• Managing and possibly selling assets such as your home

What are the different types of lasting power of attorney?

Prior to October 2007, some individuals may have an arrangement called enduring power of attorney. Today, there are two types of lasting power of attorney you can arrange:

LPA for property and financial affairs

This arrangement gives your attorney(s) control over your finances and property. They can manage bills, debts, investments, pensions, and access your bank accounts. It can also be used if you temporarily need help managing your affairs (e.g., during surgery). Note that general power of attorney and lasting power of attorney require separate legal documents. General power of attorney is typically a short-term solution and becomes invalid once you lose mental capacity.

LPA for health and welfare

This LPA takes effect only if you are unable to make decisions due to reduced mental capacity. It gives your attorney(s) the authority to make important decisions about your life, including where you live, what you eat, and the medical care you receive. While you still have mental capacity, you can specify whether your attorney(s) can decide on life-saving treatments.

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 lack mental capacity, they may appoint a deputy to manage your affairs and make decisions about your property, finances, and care.

While your loved ones can apply to become deputies, there is a risk the Court’s decision may not align with your wishes. Additionally, working with the Court of Protection can delay decisions, create challenges in altering arrangements, and incur additional fees.

Naturally, you would prefer these matters to be handled by someone you trust, who has your best interests at heart—especially as your attorney(s) will determine everything from your finances to your living conditions.

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

• Who you would appoint as your attorney—someone you trust, whether a family member, friend, or professional (e.g., solicitor)
• Whether your attorneys should act jointly or jointly and severally
• Whether to include any restrictions in the document
• Whether your attorney should handle decisions regarding property and finances, health and welfare, or both

There may be other considerations, but our experienced legal team can guide you through the process, step-by-step.