Opinions and insights from Roythornes' Private Client team
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Most of us understand the importance of making a will in order to ensure that our affairs are taken care of as we intended on our death. However, less of us consider the importance of Lasting Powers of Attorney (LPAs) and what would happen if we are no longer able to manage our affairs during our lifetime.
As a population, we are living longer and, sadly, according to a recent study by Alzheimer’s Society, there will be as many as two million people living with dementia by 2051. Therefore, we should be aware of what would happen to our affairs if we unfortunately lost mental capacity.
An LPA is a legal document that allows an individual (the ‘donor’) to give someone (the ‘attorney(s)’) the power to act on their behalf to manage their affairs, if they were to lose physical and/or mental capacity.
There are, in fact, two types of LPAs. The first is for Property & Financial Affairs; this allows you to choose one or more attorneys to make decisions on your behalf in relation to your finances, including accessing your bank accounts, or even potentially selling your home. This LPA can be drafted to allow your attorneys to step in at your discretion, i.e. whilst you still have mental capacity or do not.
The second is for Health & Welfare; again, you may choose one or more attorneys to make decisions on your behalf, but this time in relation to your personal care - for example, where you live, your diet, and even medical treatment. However, unlike the Property & Financial Affairs LPA, this one can only be used if you lose mental capacity. A Health & Welfare LPA also includes the option of allowing your attorneys to give or refuse consent for life-sustaining treatment.
In the event that you were to lose mental capacity without a Property & Financial Affairs LPA in place (or an Enduring Power of Attorney), sadly no one can make such decisions on your behalf without authority to do so. Therefore, it would be necessary to apply to the Court of Protection for a Deputyship Order, which is significantly more expensive and more time-consuming than an LPA application, and so this is sensible to avoid.
However, if you were to lose mental capacity without a Health & Welfare LPA in place, then medical professionals would make any decisions necessary, acting under the ‘best interests’ principle. A friend or family member could apply to make health and welfare decisions on your behalf via the Court of Protection, but these are very rarely accepted and usually seen as a last resort in a complicated or highly problematic matter.
As you can see, LPAs can be invaluable not only to those of us who are unfortunate enough to lose mental capacity, but also to the friends and family who are left to pick up the pieces during an already difficult time. So, if you do anything today, you may wish to consider who you would like to look after your affairs in the event you lose mental capacity.
If you would like to discuss LPAs in greater detail, please do not hesitate to get in touch and we will be more than happy to assist.