Most adults in the UK have a Will in place to deal with their estate upon their death. However, according to a study carried out by Age Co (Owned by Age UK) in August 2023, less than 1% of the UK population has a Lasting Power of Attorney (LPA). The importance of a Lasting Power of Attorney is considerably understated in comparison to that of a Will. A Will only comes into force once a person has died. An LPA ensures that you have people appointed to manage your affairs and uphold your wishes about your care and lifestyle whilst you are still alive.
What is an LPA?
An LPA is a legal document that allows you to appoint one or more trusted individuals to make decisions on your behalf when you do not have the mental ability or capacity to make decisions for yourself. A lot of people associate losing metal capacity with old age or developing dementia or Alzheimer’s decease. However, your mental capacity could be impaired at any stage of your adult life through mental or physical illness or an accident or other unforeseen circumstance. Mental incapacity is not restricted to the older population. Life can be unpredictable, and that is why it is important to have LPA’s in place.
Types of LPA
There are two types of LPAs, one which covers your Health and Welfare, and the other which covers your Property and Financial affairs. Ideally you would have both in place. A Health and Welfare LPA allows for your attorney to make decisions about your daily routine, medical care, moving into a care home, etc. A Property and Financial LPA allows your attorney to manage your affairs such as paying bills, selling your home, and managing a bank account etc.
Before the LPA can be used it must be registered by the Office of Public Guardian (OPG). Before registration the OPG must be satisfied that the LPA is legally correct, contains no errors and that people have had the opportunity to object if they have concerns. Once registered, LPAs are governed by the Court of Protection and attorneys are bound to act in accordance with the Codes of Practice and the 5 principles contained within the Mental Capacity Act 2005. This statute offers protection to the person making the LPA (the donor) and ensures that an attorney can only act in your best interests. They must help you to make as many of your own decisions as you can.
Pitfalls of not having an LPA
It is a common misconception that your next of kin gets the final say if you are unable to make decisions for yourself, however this is not how the law works. If you lose capacity to make decisions and you do not have an LPA in place, your family/friends would need to apply to the Court of Protection for a ‘deputyship order’. This is an expensive and lengthy process. Having an LPA in place ensures that you have people appointed to step in and deal with your affairs without delay and complications.
It is never too early to put in place an LPA. You may think you are too young, but the earlier you act the better. These documents are there to protect you if the worst should happen and provide you and your loved ones with peace of mind.
Our solicitors at Townsend Family Law can assist you with drafting the LPAs and registering them on your behalf. Please feel free to call our office on 01992 892214 to make an appointment.