Myth Busters- LPAs

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

1. LPA for Health and Welfare decisions

• It allows an attorney to make medical treatment decisions on behalf of the donor.
• Enables donors to specify their wishes for health and welfare decisions when they are unable to make decisions for themselves.

2. LPA for Property and Financial Affairs.

• This document allows the attorney to manage the donor’s property and finances when the donor is unavailable or has lost capacity.
• This document can be guided by the donor's instructions and preferences, helping to manage their property and finances when they are unable to do so themselves.

The Attorney acts on behalf of the Donor, typically when the Donor loses capacity; however, an LPA can be registered so that the Attorney may also act in situations where the Donor is absent or otherwise unable to make decisions.

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

Many people assume that if they lose their mental capacity, their “next of kin” will automatically be able to handle everything for them, including healthcare decisions and financial matters. However, what they may not realise is that the term “next of kin” does not have any legal significance. Essentially, this means that it does not provide any rights for a next of kin to manage a person's assets or well-being.

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

It is essential to give your chosen attorneys the authority to act on your behalf while you still have the ability to do so. If you lose capacity, you will no longer be able to grant this power legally. In that case, your family or friends would need to apply to the court for a deputyship, which is a more complex process than simply having a Lasting Power of Attorney (LPA) in place. This court process can be costly, time-consuming, and take away your right to choose. Often, the courts will decide who will act on your behalf, and if there are no suitable candidates for deputyship, they may appoint the local authority. Having an LPA allows you to select your attorneys and provide them with preferences and instructions to ensure your wishes are honoured. No one can predict the future, so it is wise to be prepared. You may 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.

If a bank discovers that one of the owners of a joint account has lost the capacity to manage their finances, it will likely freeze the account. This is because one of the account holders can no longer provide consent for the use of the funds in the account. To understand how your bank handles cases of loss of capacity, it's a good idea to inquire about its specific policies.

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

While most cases of loss of capacity typically occur later in life, individuals who engage in sports or work in potentially hazardous professions may need a Lasting Power of Attorney (LPA) sooner than they expect. For example, if someone in your family is a motorcyclist, enjoys skydiving, or participates in skiing or snowboarding, these activities come with significant health risks, both physical and mental. Loss of capacity can result not only from physical injuries but also from illnesses, as demonstrated by the pandemic, which has shown that disease can unexpectedly affect anyone at any time.

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

Consider the case of a Londoner who cycles to work every day. Unfortunately, a series of events leads to a collision between the cyclist and a bus. Let’s assume that the cyclist remains mentally alert but is unable to leave the hospital or manage their financial affairs from the hospital bed. In this situation, having a Lasting Power of Attorney (LPA) for Property and Financial Affairs would be very useful. Since they still have the mental capacity, they could sign an LPA allowing their family to manage their finances on their behalf. However, it’s important to note that there is currently a waiting list of about 10-20 weeks (almost six months) for LPAs to be registered from the submission date. This delay renders the LPA less helpful if it is needed immediately.

Final Thoughts

There are numerous myths and misconceptions surrounding Lasting Powers of Attorney (LPAs). This brief overview aims to clarify some of the significant misconceptions that you or someone you know may have encountered.

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