Everyone likes to feel in control of their life and have the freedom to make decisions based on what they feel is best for them. However, there may come a time where this is no longer possible, due to diminished mental capacity, physical illness or a number of other reasons. If you do not make preparations for this possibility, it is not necessarily a next of kin or family member that will be in charge of decisions for you, it could be whoever the Court of Protection deem to be most suitable. To avoid this happening, it is really crucial that you consider making a lasting power of attorney to ensure that your wishes are communicated via those closest to you.
There are two different types of lasting power of attorney:
- Property and financial affairs lasting power of attorney to authorise someone to do things like pay bills, manage bank accounts, collect benefits and pension payments, and sell property
- Health and welfare lasting power of attorney to authorise someone to make decisions about things like your day-to-day routine, where you live, and your medical treatment
You can have two separate people to do one of these each or you can appoint one person to do both. There is also the possibility of including someone to be your business power of attorney should you be involved in any commercial arrangements.
It is important to be aware that there are a very specific set of criteria that must be met in order for powers of attorney to be implemented. There are stringent checks constantly in place to prevent any abuse of this power whether deliberate or otherwise. As part of our power of attorney service, we will ensure your document is drafted precisely.
Our expert Wills & Probate lawyers are able to assist you with preparation of:
- a property and financial affairs lasting power of attorney;
- a health and welfare lasting power of attorney, accompanied by an advanced decision directing whether life sustaining treatment should be given; and
- a business power of attorney.
We can also help with applications to the Court of Protection:
- for the appointment of a deputy in cases where a loved one loses mental capacity before a lasting power of attorney can be made;
- to resolve issues on which attorneys or deputies may disagree; and
- to seek permission to take steps, or to make decisions, not covered by a lasting power of attorney or deputyship order.
Additionally, if you feel it the most appropriate nomination, we can act as an attorney or a deputy on your behalf.
Advising families throughout Kent and beyond
We have offices in Maidstone, Gravesend, Tonbridge, Chatham and Tenterden where we can meet you to discuss your requirements. Get in touch by giving us a call at your local branch or filling in our online enquiry form.
We can also offer meetings at your home, in hospital or in a care facility, and in exceptional circumstances a telephone appointment can be arranged via skype.
An initial appointment to discuss your requirements can be arranged from £95 plus VAT. After that we can agree funding arrangements to suit your budget.
Lasting Power of Attorney FAQs
Why make a lasting power of attorney?
Many people put off making an LPA thinking they won’t need it for a long time. However, no one knows when or if something might happen to cause a loss of mental capacity. Illnesses such as dementia, a condition such as a stroke, or a brain injury are all reasons why you may require extra support in the future.
Preparing for every possibility by putting in place a robust lasting power of attorney is the best way to ensure that you will be looked after if the worst should happen. It can also give your loved ones peace of mind that they will be able to provide more support if needed.
What happens if I do not make a lasting power of attorney?
Where a person fails to make an LPA and subsequently loses their mental capacity, their family may have to apply to the Court of Protection for legal authorisation to make decisions on their behalf.
Many people assume that if they lose the ability to make their own decisions, a family member will simply be able to take over for them. However, this is not necessarily the case.
When it comes to decisions about finances, most organisations will not allow your loved one to act for you unless they have legal authorisation. For example, banks will not allow anyone who is not the account holder to manage their bank account unless they can produce a power of attorney or a Court of Protection deputyship order.
For decisions about your personal welfare, it is risky to assume that your family will be able to step into the role of care easily. It is common for disputes about someone’s care to arise between family members making it difficult to them to act in the incapacitated person’s best interests. Creating a lasting power of attorney specifically appointing an attorney can avoid any disputes or issues before they arise.
What is mental capacity?
Many people make a lasting power of attorney to authorise someone to make decisions on their behalf in case they lose mental capacity.
Mental capacity is the ability to make your own decisions. A person lacks mental capacity if they cannot:
- Understand information provided to them about a particular decision
- Retain information long enough to make a particular decision
- Weigh up information and make an informed decision
- Communicate their decision either verbally or by another means such as sign language or gestures
We all make decisions all day every day, from small decisions about what to have for breakfast to big decisions about whether to buy a property. Common reasons a person may lose their ability to make decisions include:
- An illness such as Alzheimer’s
- A condition such as a stroke
- A brain injury
- A severe mental health condition
Depending on the reason for the lack of capacity and the severity of symptoms, a person may be able to make decisions about some things (such as what to buy during the weekly shop) but not others (such as being able to pay the bills on time). Mental capacity may also fluctuate, for example, a person with dementia may be more lucid first thing in the morning.
For these reasons, mental capacity needs to be assessed for each individual decision. It is up to the person’s attorney (with the help of their solicitor) to assess mental capacity and decide when is appropriate to make a decision on someone’s behalf.
What is the difference between an enduring power of attorney and a lasting power of attorney?
Before lasting powers of attorney were introduced in 2007, people made enduring powers of attorney (EPAs). LPAs and EPAs are much the same, except EPAs can only cover property and financial affairs.
You cannot make an EPA anymore, however, if you made an EPA before 1 October 2007 and it is legally valid, you can still use it.
I already have an enduring power of attorney, do I still need to make an LPA?
An EPA made before 1 October 2007 can still be used so if you are happy with it, there is no need to make an LPA. However, EPAs tend to be less flexible than LPAs, for example:
- You can only appoint one person to be your attorney or several people who must act together. With an LPA, you can add flexible contingencies. For example, if you are married or in a civil partnership, you might want your partner to act as your attorney in the first instance. However, if your partner has passed away or in ill health, you can name replacement attorneys
- EPAs can only be registered and used if the donor (person who made the EPA) has lost mental capacity. LPAs can be registered and used at any time, even if you still have mental capacity. For example, if you have to spend a long time in hospital, you may want your attorney to take over. They could do so under an LPA but not an EPA
- EPAs only cover property and financial affairs. With LPAs, it is possible to make separate documents for your financial affairs and personal welfare. You also have the flexibility to choose different people to act as your attorneys for each
If you have an EPA, it is worth asking a solicitor to review it and ensure it is valid as well as seeking advice about whether making an LPA would be right for you.
We are happy to review and provide advice about EPAs. We can also register them and provide advice to attorneys under EPAs.
When does a lasting power of attorney end?
A lasting power of attorney will last until the donor dies or if they cancel it while they still have mental capacity. Once the donor (person who made the LPA) dies, the LPA ceases to have effect and the attorneys will no longer be able to make decisions about their finances. Instead, the executors appointed under the deceased’s will must step in to apply for probate and handle the estate administration. This is also the case if the attorneys and the executors are the same people.