Why a Lasting Power of Attorney is not just for the elderly

Jun 29, 2021 | Siraj Khan

Mental and physical incapacity can hit at any time, which is why charities recommend planning ahead and setting up a Lasting Power of Attorney to ease the potential burden on loved ones.

By 2040, more than 1.5 million people in the UK will have dementia, according to the Alzheimer’s Society. One in six people over the age of 80 already suffers from it, with rates significantly higher among women than men. Handling your financial affairs becomes virtually impossible – which is why charities who care for the elderly recommend everyone plans ahead to ease the potential burden on our relatives.

Lasting Power of Attorney (LPA)

A Lasting Power of Attorney (LPA) gives another individual the legal authority to look after specific aspects of your financial affairs or health and welfare should you lose the capacity to do so. It’s not just for the elderly; younger people may become incapacitated through accident or illness.

If you do not have an LPA in place and later become mentally incapacitated, relatives may face long delays and expense in applying to the court of protection to get access and take control of your assets and finances.

LPAs are designed to be recognised by financial institutions, care homes and local authorities, as well as tax, benefits and pension authorities. They are legal documents that can be set up relatively cheaply, with or without the help of a solicitor. You may consider having one alongside your will.

LPAs were introduced in October 2007, replacing the previous system of enduring powers of attorney (EPA) – although an EPA created before October 2007 remains valid.

Types of Lasting Power of Attorney

There are two types of LPA: one that can cover decisions about money matters, known as a property and financial affairs LPA, and one that can cover decisions about healthcare, known as a personal welfare LPA. A key difference is that a property and financial affairs LPA can be used while someone still has capacity, whereas a personal welfare LPA can only be used once they have lost it.

A person administering a property and financial affairs LPA can make decision on things such as buying and selling your property, dealing with your bills, running your bank accounts and investing your money. If they have a personal welfare LPA, they can generally make decisions about where you should live, how you should be treated medically, what you should eat and who you should have contact with.

Who can I choose as my Attorney?

You may choose anyone you trust as your attorney, provided they are over 18, not bankrupt and they are willing to take on the role, which is a serious responsibility. It is their duty to make all decisions in your best interests and they must follow certain principles set out in the Mental Capacity Act aimed at making sure you are encouraged to make your own decisions where possible. As a donor, you can restrict or specify the types of decisions the attorney can make, or you can allow them to make all decisions on your behalf.

To protect your interests, an LPA must be signed by a certificate provider – a solicitor or someone else of your choosing – who certifies that you understand the LPA and have not been pressurised into signing it. You could choose close friends or relatives (other than your chosen attorneys) who must be formally told that you are setting up an LPA and given the opportunity to raise any concerns.

Forms and guidance are free from the Office of the Public Guardian (OPG).

Do I need a solicitor for a Lasting Power of Attorney?

We would encourage people to read through the forms and guidance first and, if they want to set up something fairly simple and feel confident about their decisions and filling out the forms, then they don’t have to have legal advice. But it’s important to remember that an LPA is a serious, powerful document so, if in doubt, they may want to take legal advice.

lasting power of attorneyNeed help with a Lasting Power of Attorney?

Meg Wilton is a Chartered Legal Executive and the Head of our Private Client Department. She can provide specialist legal advice in relation to setting up Powers of Attorney.

If are considering setting up a Lasting Power of Attorney or have any queries relating to any of the issues mentioned in this article, please get in touch with Meg by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or completing our Free Online Enquiry Form.

The content of this article is for general information only. The information in this article is not legal or professional advice. If you require legal or professional advice you should obtain independent expert advice from appropriately qualified private client solicitors such as those within our firm.

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