27 Mar

What are Lasting Powers of Attorney documents, and what do they do?

1. LPA for Health and Welfare decisions
  • Does very much what it says on the tin; it allows for an attorney acting on the donor’s behalf to consent to medical treatments and care decisions
  • Allows for the donor to provide instructions and preferences for how they wish their decisions regarding their health and welfare when they lack capacity
2. LPA for Property and Financial affairs
  • Similar to the previous form, this one allows for the attorney to manage the donor’s property and finances, though this can be due to the donor being away or having lost capacity
  • This form, too, can be guided by instructions and preferences of the donor to help restrict/guide how they wish for their property and finances to be managed when they can’t do it themselves

The Attorney acts on behalf of the Donor, though this is traditionally for when the Donor loses capacity; an LPA can be registered so that the Attorney can act where the Donor may be absent or otherwise indisposed.

Why do I need an LPA? My next of Kin can handle everything.

Most people believe that if they lose mental capacity, their “next of kin” will be able to manage everything for them, from their healthcare choices to their financial assets. What they don’t realise is that the concept of a “next of kin” isn’t a legal concept. By that, I mean that it doesn’t have any actual legal meaning and does not grant a hypothetical next of kin any rights to help manage their assets or well-being.

I can worry about having an LPA done when I lose capacity, even IF I lose capacity, right?

You need to give your ‘attorneys’ the power to act on your behalf while you still can give them this power. If you were to lose capacity, by law, you no longer have the means to provide this power, and your family/friend(s) will have to make an application to the court and go through a process that is far more arduous compared to simply having an LPA in place, known as deputyship. It can be costly and time-consuming and removes any form of choice away from you. Often, the courts will choose who will act on your behalf; should you lack any suitable candidates for the deputyship, the courts could even appoint the local authority instead. An LPA means you have chosen those who are to be your attorneys as well as your preferences/instructions to help guide them in ensuring your wishes are met. Nobody can tell the future, so it is worth being prepared just in case; you might never lose capacity, but what if you do?

Our money is in a joint account, so we can still access it if one of us loses capacity.

Actually, if the bank learns that one of the owners of a joint account has lost capacity, it is likely to freeze the account as one of the account holders can no longer consent to the use of the funds held in said account. However, you can query your bank about the policy it employs for loss of capacity.

I’ll lose capacity when I’m older, so why should I worry? I’m only in my 30s/40s, etc.

While it is true that most cases of loss of capacity take hold in the later years of life, if you play sports or have a potentially hazardous line of work, you may need an LPA sooner than you’d imagine. An example I would like to use is if someone in your family is a motorcyclist, likes to skydive or even Ski/Snowboard, etc; these types of sports inherently bring about more significant risks to health, both physical and mental.  Not only can we lose capacity through physical injury, but as the pandemic has shown us, disease or illness can catch anybody out at unexpected times.

The LPA is for when you lose mental capacity only, so it’s only good for that, right?

Take the case of the Londoner who cycles to work every day, and the unfortunate thing happens: a series of events lead to a collision between the cyclist and the bus. Let’s say that they still retain their mental faculties, but they can’t leave the hospital nor have the means to manage their financial affairs from the hospital bed; this is where an LPA for Property and Financial affairs would be beneficial. They could sign an LPA for their family to manage their finances as they still have mental capacity, right? While yes, this is correct, there is currently a 20-week (nigh on six months) waiting list for LPAs to be registered from the submission date. It is not too helpful half a year from the day it’s needed.

Final Thoughts

These are just a few of the myths and misconceptions surrounding LPAs, and there are many more. Hopefully, this brief overview of the significant points of misconception helps clarify any confusion you or someone you know may have experienced. 

This article was written thanks to Alexander Brown, a member of the Technical Advice team at The Society of Will Writers. 

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