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/ 03 May 2023

Why should you make a Lasting Power of Attorney?

Lasting Powers of Attorney (LPAs) let you choose who should manage your affairs and make decisions on your behalf if you lose mental capacity. With people living longer than ever before, it is becoming increasingly important that you make clear what should happen in the event that you lose capacity to manage your own affairs.

Amaya Huntly

Senior Associate

Wills, Probate, Trusts

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Claire Martin

Partner

Head of Private Client

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If you were watching BBC News this morning, you might have seen their feature by BBC presenter, Nina Warhurst, exploring the difficulties that families can encounter when a loved one is diagnosed with dementia. With an ever-aging population, this is a hurdle with which many families are faced.

Helping an aging parent, friend or relative with a progressive condition affecting their brain can be exhausting, traumatic and just very, very difficult. Trying to sort anything out for them, such as their financial affairs, can feel like the world is against you. The frustration at the person on the phone wanting to speak to the holder of the account so that they can verify their date of birth and first line of their address when you know that they can’t remember it is one of the many scenarios people in Nina’s report relayed.

It is a situation many people, sadly, can relate to.

The question is, can this be avoided?

The best way to try to make a situation like this as easy as possible to deal with is for you and your family members / your close friends to plan ahead. It can be daunting to think about a time when you might lose capacity, or when you won’t be able to make decisions for yourself. But look at it as an opportunity to control what you would want, should that circumstance ever arise.

It is good to see features like this on platforms like BBC Breakfast, as getting the conversation going can help people learn about what they can do to make such a difficult time that little bit easier.

If you make a Lasting Power of Attorney, you can choose who you want to make decisions on your behalf in the event that you no longer have capacity to do so yourself. It is a very powerful, legal document, so you need to think very carefully about who you appoint.

Why is it called a Lasting Power of Attorney?

An ordinary ‘power of attorney’ allows you to appoint someone to make decisions on your behalf with respect to your financial affairs. For example, you might be out of the country and want them to act in a property transaction on your behalf, or if you are going to spend some time temporarily in hospital and you want them to help.

However, if you ever lose capacity, an attorney appointed under such a power of attorney can no longer act on your behalf. This is because, without mental capacity, you are no longer authorising that power of attorney.

A Lasting Power of Attorney, on the other hand, lasts beyond you ever losing capacity. Therefore, it means your attorney can continue to make decisions on your behalf and, for example, manage your financial affairs even when you no longer have capacity.

Are there two types of Lasting Power of Attorney?

Yes, you can make a Health & Welfare Lasting Power of Attorney and/or a Property & Financial Affairs Lasting Power of Attorney. The former allows your attorney to make decisions with respect to your day-to-day care, where you live, what you should eat, the social events you should be involved in and it can even give special permission for your attorney to make decisions regarding life-saving medical treatment. The latter is in relation to financial decisions, such as paying your bills, buying and selling property, investing money, and so on.

How do I choose my attorney?

You need to think carefully about who you would want to make these decisions on your behalf when you no longer can do so yourself. You want someone you trust, someone who you know will have your best interests in mind, and someone who you think will be capable of taking on the task.

Give some thought to logistics – where do those potential attorneys live, and do they live close to you? Will they physically be able to make those decisions? Will they be able to respond relatively quickly to any issues that arise?

The persons(s) you choose as your attorneys for your Property & Financial Affairs Lasting Power of Attorney may not be (and do not need to be) the same person(s) as you choose for your Health & Welfare Lasting Power of Attorney.

Can I appoint more than one attorney?

Yes, in fact you can appoint up to 4. But if you do, do consider the practicalities of doing so. Sometimes having too many people involved can complicate matters. That being said, if you do wish to appoint several attorneys, you might want to consider appointing them to act ‘jointly and severally’. This means that they do not all need to be involved with every single decision, which can cause delay to either responding to an issue that has arisen, or to actually managing your assets.

If you appoint them to act jointly, this also means that if one of those attorneys loses capacity themselves, or dies before you, the other attorneys cannot act on your behalf either. Whereas if you had appoint them to act jointly and severally the surviving attorneys could still act under the LPA

You can also appoint substitute attorneys who only step in if, for example, another attorney can’t act. You need to be careful, though, to make sure that you complete the form correctly so that the substitute does indeed step in when you actually intend (for example, if you want them to step in and act together with your remaining first attorney, or if you only want them to step in if all of your first attorneys can no longer act).

Of course, there is no ‘one size fits all’, and these are options you can discuss and explore with your solicitor who can guide you through the process.

Can I end my Lasting Power of Attorney if I change my mind?

Yes, whilst you still have capacity you can revoke your Lasting Power of Attorney by way of a deed of revocation, which you will have to send to the Office of the Public Guardian, where Lasting Powers of Attorney are registered. You will also need to return the original Lasting Power of Attorney.

Can I remove an attorney later down the line, if I change my mind?

Yes, whilst you still have capacity you can remove an attorney by preparing a partial deed of revocation and sending it to the Office of the Public Guardian, where Lasting Powers of Attorney are registered. You cannot add another attorney in this way, however. To do that, you would need to end your Lasting Power of Attorney and start again.

Before making any changes to your Lasting Power of Attorney it is sensible to seek advice to make sure that the change you are making is not having an undesired result (such as inadvertently bringing the Lasting Power of Attorney to an end).

I won’t need a Lasting Power of Attorney because all my accounts and property are jointly owned

This is not the case. If a joint account holder loses capacity, the other account holder will not actually have authority to deal with that account. This can cause difficulties for the account holder who has not lost capacity. It is also important to remember that just because you are married or in a civil partnership this does not mean that your spouse / civil partner will automatically have authority to manage your affairs on make decisions on your behalf.

Are Lasting Powers of Attorney relevant to me?

It is also worth bearing in mind that whilst we often think these issues relate only to the elderly, as the risks of dementia are heightened with age, Lasting Powers of Attorney should probably be considered by all adults, especially where you have assets. Dementia is not the sole cause of loss of capacity, and an unexpected event could lead to you not being able to manage your affairs sooner than you might have imagined.

Parents of adults with learning difficulties may also wish to help their children explore their options in this respect. Just because someone may not have the capacity to actually manage their own affairs does not necessarily mean they do not have capacity to choose an attorney.

What happens if I lose capacity and I don’t have a Lasting Power of Attorney in place?

In these circumstances, your family will no doubt face several difficulties as they will have no legal authority confirming they are allowed to act and make decisions on your behalf. Instead, your family / close friends will have to make an application to the Court of Protection to become your deputy. This can be a difficult and drawn-out process, especially if the family do not agree and / or if social services become involved. The person ultimately appointed as your attorney may not be the person you would have chosen. Therefore, whilst you have the opportunity, take control and make your Lasting Power of Attorney.

Do I need a solicitor to make a Lasting Power of Attorney?

No, you do not need to appoint a solicitor to help you, and you can complete the forms yourself. However, a solicitor will be able to offer you guidance and assistance with making these difficult decisions that may impact you in the future and can make sure that the document is correctly drafted, or answer any questions or concerns you may have in relation to the Lasting Power of Attorney. Further, if you are looking to help a family member or friend who may be elderly or may already have an early dementia diagnosis, or who has learning difficulties, a solicitor who is specialised in this area will have the experience and the knowledge to best assist you and give you confidence that the correct steps are taken.

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