3 January 2019
Should You Have A Lasting Power Of Attorney?
A Lasting Power of Attorney (LPA), is a document that protects you if you become unable to look after your own affairs, for instance as you grow older. It lets you choose one or more ‘attorneys’ to look after your interests for you. Most people choose their spouse or adult child as their attorney, but it can also be a neighbour or friend. It needs to be someone you trust completely to act in your best interests.
A typical situation where an LPA is useful is when someone develops Alzheimer’s, usually in later life. They will often lose the capacity to make decisions about their finances and their health and care. However an LPA is recommended at almost any age, so that if you are injured, or have an unexpected major health problem such as a stroke, your needs can be looked after.
The reason an attorney might be required is that without formal authority no-one can make decisions on your behalf. If you have not appointed an attorney through an LPA, it will mean that no-one – not even close family – can access your bank accounts or finances, or make decisions about your health and care. An LPA is particularly important for someone who owns or runs a small business – if they are unable to run it, then without an LPA it might collapse.
What does ‘lacking capacity’ mean? It’s a legal term for not being able to make your own decisions, or not understanding the consequences and impact of those decisions at the time you are making them. Someone can lack capacity sometimes or all the time. Lack of capacity usually come from an illness, such as Alzheimer’s, or an accident, but can come from a condition at birth. An important point, which is obvious when you think about it – but in my experience, is often overlooked – is that you need to have capacity at the time you make the LPA. It is easy to leave it until it is too late.
There are two types of LPA: one for property and financial affairs, and another for health and welfare. You can make one or other or (usually) both at the same time. The attorneys do not have to be the same in each LPA, but they usually are. With a property and financial affairs LPA in place, your attorney can access your bank accounts, your pension and benefits, and sell your property on your behalf. With a health and welfare LPA, your attorney can make decisions about your day-to-day care, medical decisions, what you wear and eat, etc.
One question people often have is this: if I make an LPA, does it mean I hand control of my life to someone else? The short answer is No. For one thing, the health & welfare LPA can’t be used unless you do lose capacity – if you never do, it can never be used. And while the property & finance LPA can be used while you still have capacity, if your attorneys do take actions on your behalf, they must do so with your consent.
For more information about making an LPA, click here.