Questions & Answers
We often hear people say they will leave making a Lasting Power of Attorney (LPA) until later in life. The consequence of this is that many people do not have an LPA when they need one most. With the unpredictable nature of life, an LPA might be needed at any stage.
- LPAs control the unexpected when it comes to the following:
- Health & Welfare
If something unexpected should happen meaning you are no longer in a position to look after
your own affairs, having a LPA in place would avoid some of the stress and practical difficulties in managing finances and making decisions regarding your future:
Q. What is an LPA?
A. It is a legal document that lets you (known as the ‘donor’) appoint one or more people (‘attorneys’) to assist you with making decisions or to make decisions on your behalf. Your attorneys do not have to be family but persons you trust implicitly. This enables you to retain control if you have an accident or illness and cannot make your own decisions as someone you trust can help with decision making.
Q. If I have a will do I need an LPA?
A. Yes. This is separate to your will. Your will only comes into effect on your death. An LPA can only be used during your lifetime and is revoked on death.
Q. Who can put an LPA in place?
A. In order to put an LPA in place you must be 18 or over and have mental capacity at the time of making the LPA.
Q. What types of LPAs are there?
A. There are two types, one for property and financial affairs and the other health and welfare. If you already have an Enduring Power of Attorney, you will know that this only covers property and finance, so it is wise to make a health and welfare LPA too and perhaps review your EPA. You can appoint different people to be your attorneys for each type of LPA and replacements should the original attorneys be unable to act.
Q. Can I make a specific LPA for business?
A. Yes. You are not restricted to just making one property and financial affairs LPA, you can make one to cover your business affairs too.
You can create an LPA which can be limited to dealing only with your business. This is useful as it allows you to choose people to sign business documents/make decisions on your behalf during your absence or incapacity, whilst keeping these matters entirely separate from your personal affairs.
Q. Should I register the document with the Office of the Public Guardian?
A. This is entirely up to you but we usually recommend that the LPAs are registered at the same time as you make them. This is because if the documents are needed at short notice or you lose capacity, the registration process can cause significant delay. The LPA will not be available during this period which may be a time that critical decisions need to be made. Furthermore, if the donor lacks capacity and on registration an error is found in the LPA, meaning it cannot be registered, the only option would be an application to the Court, discussed further below.
Q. What happens if I do not have an LPA?
A. Without an LPA an application will be required to the Court of Protection and the Court will decide who will take over your affairs should you become unable to manage them yourself. You will have no say and therefore it may end up being the someone you would not have appointed under an LPA. This is a much more lengthy and costly process.
Q. Why should I make an LPA now?
A. You get to choose people you trust to manage your affairs and to make decisions for you should you ever become unable to do so. On a practical basis, a property and financial affairs LPA can be created to come into effect straight away and can be useful even if you have capacity as it allows your attorneys to keep your affairs in order should you be on holiday, physically unable to get out and about or if you have a temporary stay in hospital.
LPAs are regulated and supervised by the Office of the Public Guardian. They can investigate allegations of abuse or misuse of funds by an attorney and therefore offers an additional level of protection and is much safer than say simply handing over your bankcard.
You must make an LPA whilst you are mentally able to do so. If you later lose the ability to understand the document you will not be able to create one. Incapacity can occur at any time and therefore this is not just a document to consider when planning for retirement. It is important to make the document sooner rather than later, when it might be too late.
An LPA will avoid an application to the Court to gain access to finances which is much more time consuming, costly and you lose the choice over who manages your affairs.
LPAs are invaluable documents and putting such documents in place can make life easier for family at what is likely to be a difficult time.
Finally, if you need any more reasons, such documents give you peace of mind as they will last the duration of your lifetime (unless revoked by you) giving your family security and the authority to deal with issues quickly should the situation arise. We hope you would find comfort in the knowledge that you have taken control of your life by appointing those you trust most to continue acting on your wishes if you ever become unable to communicate
them for yourself.
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