All about the lasting power of attorney

Michael Culver, Chair of SFE (Solicitors for the Elderly) explains what a lasting power of attorney is and why it’s important to make it part of your later life planning. SFE is a national not-for-profit organisation of lawyers specialised in dealing with older and vulnerable people

An LPA, or Lasting Power of Attorney, is a powerful legal document allowing you to appoint one or more people (an Attorney) to make decisions on your behalf should the time come that you’re unable to do so. It’s an essential step to ensure your wishes are carried out if you should lose capacity.

Lacking capacity means a person’s mind is impaired and they may be unable to make a decision, for example, someone with dementia might find it hard to remember things about themselves and their life.

Although there’s been a rise in enquiries made about LPAs since early last year, research by SFE reveals only 22 per cent of people in the UK have actually made one.

What does an LPA cover?

Someone wearing a suit and signing a document

There are two types of LPAs: one for your property and financial affairs and one to take care of your health and welfare.

A Property and Financial Affairs LPA allows an attorney to make decisions about how to spend your money and the way your property and affairs are managed. It allows them to pay bills, collect your income, buy or sell property on your behalf, manage bank accounts and make investments. This type of LPA can become valid before you lose capacity if you wish for someone to take control of your finances to help support you through a difficult time, for example.

A Health and Welfare LPA allows an attorney to look after your personal welfare and healthcare and lets them take control of where you live, the treatments you receive and covers day to day matters such as diet and daily routine.

Both LPAs can be made separately or together, but where possible, you should consider making or updating both LPAs at the same time with a specialist solicitor who has the right experience and expertise to help you make sure your wishes are captured in the right way.

"There are two types of LPAs: one for your property and financial affairs and one to take care of your health and welfare"

The importance of having an LPA in place

Law & justice symbol

Sixty-five per cent of us think that our next-of-kin will be able to make medical decisions for us if we’re no longer able to, however, this isn’t the case unless a Health & Welfare LPA is in place.

If you lose capacity to make decisions and you don’t have an LPA, your loved ones will be forced to apply to the Court of Protection to be appointed as your attorney. This means you won’t get to choose who makes decisions on your behalf and choices about where you live and who cares for you could be in the hands of strangers.  

Applying to the Court of Protection can often be a long and expensive process and annual fees can also drain assets. TV presenter Kate Garraway recently explained her frustration at being unable to access funds to manage her husband’s care while he battled COVID. She didn’t even have the legal right to see his medical notes owning to data protection. This highlights the importance of having legal protection like an LPA in place.

Appointing the right person

When choosing an attorney, you must think about your options carefully as you’re handing over key decisions about your life, welfare, and assets. You should consider people who are responsible, trustworthy and have the appropriate skills to make the choices you set out in your LPA.

The person you choose to appoint must be at least 18 years of age and you could consider a family member, a close friend, or a professional adviser such as a solicitor who specialises in LPAs. You might decide to appoint more than one person as your attorneys and can allow them to always act together or act together or independently in certain specified matters.

"The person you choose to appoint must be at least 18 years of age and you could consider a family member, a close friend, or a professional adviser"

An LPA is an extremely powerful legal document and appointing the wrong person can cause stress for loved ones and lasting impacts from decisions made through incompetence or untrustworthiness.

When choosing an attorney, consider how good someone is with managing their own money, how far away they live from you and their availability for support. These are all key considerations to make when deciding who should take on the role. It’s also important to ensure when appointing two or more attorneys that they get along and will be able to work in unison to make the right decisions.

The risks of DIY options

A pile of documents

Since the COVID pandemic, there’s been a rise in DIY legal documents. This is where people use templates online and fill in the details without professional advice. The DIY option can sound appealing for convenience and cost, but it’s important to be aware of the risks which include fraud and attorney abuse of power.

You could also make mistakes in your application which may lead to delays or your LPA being invalid. According to Which?, 22,000 LPAs are rejected every year so it’s essential you get the right legal advice and support.

Talking about your wishes

People sat discussing

Having conversations about losing capacity and worst-case scenarios may feel intimidating but being clear and open about the steps you’re taking to put an LPA in place and about the kind of things you’d want is vital.

It might be a sensitive topic for your loved ones so take the time to explain your wishes and ensure that yourself and the people closest to you feel comfortable about your requests.

Next, you should discuss your wishes with a solicitor. Consider someone specialised in dealing with this area of law to ensure you’re offered experienced guidance. Going with a professional will help ensure the process of creating a power of attorney is as stress-free as possible.

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