Power of Attorney Solicitors

No, it is a mistake to think that LPAs are only for the elderly as disaster can strike at any time.

Like wills, people often do not think about LPAs until they absolutely have to. As a result, the most common problem we encounter when preparing LPAs is that the donor has left it until they are very elderly or have a condition which is already affecting their mental capacity. In order to prepare an LPA the donor must understand what an LPA is and the nature of the decision they are making i.e. whether or not to make an LPA, this includes understanding the relevant information, being able to retain that information, to use and weigh up that information in making the decision and communicating the decision. If they do not have the necessary capacity then they cannot prepare an LPA.

Having an LPA allows you to grant that decision-making legal power to people chosen by you and it is for that reason it is so important. It is also worth noting that once an LPA is registered there is no time limit on its use and so once prepared LPAs are in place just in case anything should happen.

I would encourage anyone who is thinking about preparing a will to also consider LPAs and how they might want decisions to be made if they are unable to.  As with wills, there is no reason to put off preparing LPAs. 

Although almost everyone does now know what a will is there is often some confusion about the differences between wills and LPAs, indeed some people think they are one and the same.

I’m often asked when preparing a will what decisions the executors will be able to make during their lifetime or indeed whether an attorney is the same as an executor. It is important to be clear that a will is used and referred to after death, whilst an LPA is only valid during a lifetime. LPAs and wills are completely separate documents with no significant overlap, who is appointed as your attorney has no impact on who deals with your estate when you’ve passed away.

This is a straightforward point but I hate to think that people are not making LPAs because they already have a will in place and are under the misapprehension that they are one and the same. 

The focus when discussing LPAs is generally what will happen when the client loses their capacity to make decisions themselves. However, it is important to note that the donor can give their attorneys authority to make decisions about their property and financial affairs as soon as the LPA is registered, albeit the attorneys can only act with the donor’s consent whilst the donor has the capacity to make the decision themselves. The same choice is not afforded in relation to health and welfare LPAs, the donor continues to make these decisions until he/she can no longer do so.

Giving your attorneys the ability to make decisions straight away can be very useful. I have clients, for example, with mobility or hearing issues who have no capacity problems but having an attorney who can go to the bank to withdraw cash on their behalf, or liaise with utility companies over the phone is very helpful. In recent months, and for the foreseeable future, those who are vulnerable and so minimising interaction with others, now known as “shielding”, may encounter difficulties in actioning their decisions, particularly if they do not have access to the internet. Having someone appointed as an attorney for property and financial affairs could prove extremely useful for those people

An LPA is not only useful for those who have health conditions, be they mental or physical. With the donor’s consent, the attorney could carry out the donor’s wishes simply because they are better able to, for example, if the donor is abroad but needs something arranged back in England.

Whilst LPAs will always be associated with loss of capacity as it is their ability to continue despite a loss of capacity which marks them apart from other types of power of attorney, the other scenarios in which a property and financial affairs LPA can be used further demonstrate the importance of having LPAs in place. 

It is a common misconception that LPAs are not needed because, for example, the medical team or the bank will simply take instructions from your next of kin when you can no longer make decisions for yourself. This is not the case, the next of kin does not have any legal right or responsibility to make decisions.

In a medical situation where you do not have the capacity to make decisions yourself about, for example, your treatment and care, your next of kin will not be asked to make decisions on your behalf but rather kept informed about your condition and treatment. It is the relevant professional who will make decisions based on what they believe to be in your best interests, often with input from those close to you. This can leave your loved ones feeling frustrated that the final decision rests with the professional involved, particularly if their views are not acted upon or given weight.

Another common problem arises with banks and the payment of bills. If you have bills which need paying but you are unable to give the bank instructions due to a loss of capacity, they will not simply take instructions from your next of kin. This can leave those who care for you in a very difficult position where bills and, in particular, expensive care fees need paying but due to there being no attorney in place, these payments cannot be made from your own funds. This can put additional strain on those close to you and add additional stress at what would no doubt already be a very difficult time.

Your LPAs need not appoint your next of kin as your attorney, your attorneys can be anyone you wish. Your attorneys should be those who know you best and who you trust to make the decisions you would make if you were able to.

We have an extensive blog post on this topic here.