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No-one enjoys considering their own mortality. But most people will take the time to think about who they want to benefit in the event of their death. Whilst it can be uncomfortable, people recognise the importance of leaving clear instructions through a Will to ensure their wishes are met when they are no longer able to express them.

So why is preparing a Lasting Power of Attorney any different?

It’s a scary thought but what if something happens that leaves you unable to express your wishes to your loved ones while you are still alive? If you have put a Power of Attorney in place, then the people you trust will be able to make important decisions on your behalf immediately giving them certainty at what would undoubtedly be an already distressing time.

Simply being unwell, or suffering from a mental illness on its own, does not mean that you lack capacity - nor does needing more time to understand something. Losing your mental capacity simply means the ability to make a specific decision at the time it needs to be made; you might not be able to understand or weigh up information to make a decision or even communicate your decision. While it may be an easy thing to put off, the unfortunate reality is that accidents and illness could happen at any time in your life, leaving you unable to deal with your affairs. What’s more, according to the Alzheimer’s Society, ‘225,000 [people] will develop dementia this year*, that’s one every three minutes’ and with people living to a greater age the number of people living with dementia in the UK is set to rise.

Like a Will, a Power of Attorney (POA) is a legal document that gives you the opportunity to ensure that the person or people making decisions when you are no longer able to do so is someone you trust.

Types of Power of Attorney

There are two types of POA, an Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA). EPA’s are no longer available for new applications, but if you have already created one, this can still be registered with the Office of the Public Guardian (OPG) when it is needed in future. LPA’s have been available since 2007 and come in two forms; Property and Financial Affairs and Personal Welfare.

  • Property and financial affairs includes operating a bank account, managing assets or property, dealing with tax and claiming benefits.
  • Health and welfare includes where a person lives, what care they receive and whether medical treatment is received or refused.

The Office of the Public Guardian have produced a guide on how to make and register a Lasting Power of Attorney, or you can speak to a solicitor. It is important to note that a Lasting Power of Attorney should be registered with the Office of the Public Guardian (OPG) before capacity is lost. . 

What happens if you don’t have a Lasting Power of Attorney in place?

A common misconception is that because you’re married or in a civil partnership, your partner will be able to manage your affairs if you lose capacity. This is not the case. Your partner will not automatically be able to deal with your finances. Without a Lasting Power of Attorney in place, your loved ones are required to go through the decidedly lengthier, complex and costly process of applying to the Court of Protection. Waiting for an application to go through just adds even more pressure to families at a time which is already emotionally charged.

Not only is this a more drawn out process, it is also an expensive one. Professional and court costs can range from £2,000 to £3,500. Whereas a sLasting Powers of Attorney can be either:

  • put in place by a solicitor or Power of Attorney specialists, depending on their fee’s the cost can range upwards of £250+VAT (this will vary between firms)[1]; or,
  • set up online using the digital LPA tool or by requested and submitting a paper application to the OPG, paying only the registration fee of £82.

The Role of the Attorney

Just because you appoint someone as your attorney, does not give them the authority to do whatever they want with your affairs. Whilst an attorney can deal with your affairs, they have to act in your best interests. The Mental Capacity Act 2005 puts restrictions on the decisions an attorney can make in order to protect you from financial harm. Your attorney must: 

  • Follow any instructions you have made, you can even leave them an expression of wish or living will to let them know how you wish certain things to be handled. 
  • Help you to make your own decisions, as far as is possible
  • Respect your rights! This could be their human and civil rights, they cannot discriminate based on your gender, sexuality race or religion. 
  • Keep their finances separate from your own, (this is unless you’ve already got a joint bank account, or you own a home together.)
  • Restrict gifting to small customary gifts, e.g. birthdays; they cannot make large gifts, give away your home for free or less than market value unless they have approval from the Court of Protection.

Lasting Powers of Attorney can be thought of in a similar light to insurance. We all hope it won’t be needed, however, should the worst happen, they are there ready to be used when you and your family need them the most. For more information on LPA’s, Equilibrium have produced a Factsheet that you can download here.

 

The information provided through the Equilibrium website is based on our opinion and is for general information purposes only. We would recommend seeking the advice of a qualified professional before making any legal decisions. 

 

Should you need more support, you can speak to the Office of the Public Guardian or write to them using the following information:

Helpline: 0300 456 0300

Email: customerservices@publicguardian.gsi.gov.uk

Office Address: PO Box 16185 

                       Birmingham 

                        B2 2WH

For the complete LPA application pack and support guides and details of fees/costs, please visit:

https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

 

 

*https://www.alzheimers.org.uk/info/20027/news_and_media/541/facts_for_the_media



[1] https://ukcareguide.co.uk/power-of-attorney-costs/