Lasting Powers of Attorney and the risk of the alternative

The different types of Lasting Power of Attorney are explained by Tallents Solicitors
January 31, 2024
All Tallents Articles Court of Protection Lasting Power of Attorney Private Client law

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document which ensures that if you (the Donor) became unable to act or carry out wishes for yourself, that someone you legally appoint (your Attorney) can act on your behalf.

LPAs must be made whilst you have the required mental capacity to understand the nature of the document that you are putting in place, says Georgia Mills, a solicitor at Tallents Solicitors in Newark. These legal documents outline your wishes in the event your mental health declines or you lose the physical ability to communicate your decisions, so it makes sense for every adult to have LPAs in place.

There are two types of Lasting Powers of Attorney, a Property and Financial Affairs LPA and a Health and Welfare LPA.

Property and Financial Affairs Lasting Power of Attorney 

With this type of LPA your Attorney can act on your behalf on matters relating to your property and financial affairs. This type of LPA also allows your Attorneys to assist you with financial aspects at your discretion, while you still maintain your mental capacity and ability to communicate. For example, if you were to become physically incapacitated following an accident, but required money withdrawing from a bank, or, if you needed to make a phone call but were hard of hearing, you could request that your Attorney assist you with these tasks.

Property and Financial Affairs LPA covers anything that has to do with your Property and Finances including, but not limited to, your bank or building society accounts, your investments, pensions or benefits, paying your bills or even buying, selling or maintaining your property.

Health and Welfare Lasting Power of Attorney

This LPA allows your Attorneys to carry out your wishes related to your healthcare and daily routine. For example, this may include where you live, how you dress, medical care, medical treatment and your diet.

When setting up a Health and Welfare LPA, you will decide about whether to give your Attorneys the ability to make ‘Life-Sustaining Treatment’ decisions. This could cover a decision such as a course of antibiotics, a large operation, or can even include whether you stay on artificial life support. This third type of decision mentioned is key where it may not be your wish for your life to be supported artificially, an LPA would allow your Attorney to carry out this wish on your behalf.

I’m healthy, so why do I need LPAs now?

LPAs are important for every adult to have as sadly, it’s impossible to predict when something may happen which will affect your physical and mental ability to carry out and communicate your wishes.

Providing you are over 18 years old, you can have an LPA. There is no maximum age to prevent you making an LPA, however, you must be capable of making and expressing your own instructions in order to put LPAs in place.

Due to the possible complexities of setting up an LPA, along with the lengthy nature of the LPA document itself, it is strongly recommended that an experienced solicitor draws them up for you, so that you know the LPA is set up correctly and in accordance with your wishes.

Is there an alternative to Lasting Powers of Attorney?

An alternative to an LPA is a ‘Deputyship order’, but be warned, this should really be seen as a last resort if LPAs have not been put in order. An application is made to the Court of Protection to request that they be appointed as a Deputy as opposed to an Attorney (as under an LPA).

Like an LPA, there are two types of Deputyship orders: Property and Financial Affairs and personal welfare.

However, unlike an LPA, a Health and Welfare Deputyship order is only granted in a small number of circumstances and they are quite rare.

A Property and Finances Deputyship order requires a sizeable amount of evidence regarding the finances of the individual who lacks capacity, along with evidence from the applicant to prove they are a suitable candidate for the role of Deputy.

There are further significant downsides to the Deputyship route:

  • The process is expensive compared to the costs of setting up LPAs, as a Deputyship application includes a court fee, an assessment fee for each applicant, hearing fees (if required) and potential appeal fees.
  • There are also additional fees payable for the court to assess the level of general supervision a Deputy needs.
  • The application paperwork is long and complex.
  • At present, it can take around 12 months and possibly longer for a Deputyship application to be considered, although there is an emergency application process available in certain circumstances.
  • Following an application being reviewed by the court, there is no guarantee that the Deputyship order will be granted.
  • Health and Welfare Deputyship orders are not commonly granted by the court.
  • The appointed Deputy will be under annual supervision for the duration of the Deputyship. The Deputy’s decisions must be noted, along with the steps taken on reaching this decision, plus a report to the court must be presented annually. There are also additional fees payable for the supervision of the Deputy by a court appointed representative. 

Are there other benefits to LPAs?

Without LPAs in place, you cannot assume that your next of kin or close family members will be able to act and carry out your wishes about your property and finances, or your health and welfare on your behalf.

LPAs offer many benefits, some of which are:

Peace of mind – To know that you have appointed someone you trust to manage your affairs if you no longer can. In your LPA you can include wishes and instructions to your Attorneys to follow. As your solicitor, we can help you in deciding which preferences and instructions you may wish to give your Attorneys.

Convenience – as mentioned above, a Property and Finance LPA can be used while you still have your capacity. This could be very practical if you were in hospital, or abroad and needed certain bills to be settled. In this case your Attorneys could act on your instructions.

Protection – LPAs are governed by the Mental Capacity Act and your Attorneys must comply with their legal responsibilities and duties and must always act in your best interests. By way of reminder, a Health and Welfare LPA can only be used when you have lost capacity.

Control – you decide who your Attorneys are. If you have mental capacity, you can also revoke an LPA, or remove an Attorney from a registered LPA.

Guidance – having an LPA in place makes the decision making easier for your loved ones if you lose capacity. This can often be a distressing time for those around you, therefore having LPAs already in place to allow them to help you can be weight off their shoulders.

In a way, LPAs can be viewed in the same was as an insurance document, in that your loved ones will hopefully never need to use them. However, if you did lose capacity or the ability to carry out your wishes, already having LPAs in place makes it much easier for your loved ones to help you manage your affairs and execute your wishes.

Next steps

In these uncertain times, we recommend that every adult should make Lasting Powers of Attorney as soon as possible. The legal experts at Tallents Solicitors have successfully drawn up thousands of LPAs for clients and can help you with yours.

If Tallents Solicitors has assisted in the preparation of your LPAs, then we can also store these documents free of charge for you for safe keeping until required.

If you entered into an Enduring Power of Attorney (similar to an LPA but made prior to October 2007) this will cover your Property and Finances only. You may wish to speak with us in relation to putting arrangements in place for your health and welfare, and to review your existing Enduring Power of Attorney to ensure it remains appropriate for your circumstances.

To make a confidential appointment at one of our three offices in Newark, Southwell or Mansfield, just give us a call.

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