Lasting Power of Attorney

An essential, but often overlooked document is the Lasting Power of Attorney (LPA).

If you're ever in a position where you're no longer able to make decisions for yourself, an LPA allows your chosen representatives to make decisions on your behalf.

There's more than one reason why someone may need to have an LPA in place. It could be a temporary measure, such as paying bills during a hospital stay, or it could be something more serious, such as a long-term health condition leading to needing help on a day-to-day basis.

Why is a Lasting Power of Attorney important?

Simply, it allows your loved ones to look after your care and finances if you're no longer able to do so yourself.

One of the biggest misconceptions people have is that their partner (or most immediate family member) automatically has the right to look after their affairs if they’re unable to. Legally, however, they are not allowed to do this.

Without an LPA, bank accounts - including joint accounts could be frozen, allowing unpaid bills to accumulate. This puts unnecessary pressure on your family when all they want to be doing is looking after you in your time of need.

What are the two types of LPA?

There are two types of LPA which can be put in place to help an individual. The type which you choose to use depends on your circumstances and what's important to you. However, it is possible to have both types at the same time.

• Property & financial affairs - The attorney can make decisions regarding your property, income, benefits, and pay bills subject to any restrictions you decide.
• Health and welfare - The attorney can make decisions on your behalf regarding your care and where you live, including who you have contact with and what kind of activities you take part in.

It's important to consider when you want your Lasting Power of Attorney to become active.

For example, if you want someone else to be able to make financial decisions on your behalf even if you still have mental capacity, then you can choose to activate your property and financial affairs LPA.

However, you can't decide to let someone take over your care decisions; this can only be done if you lose the ability to make decisions for yourself, and it would be in your best interests to have someone else make them on your behalf.

What is mental capacity?

In basic terms, mental capacity is the ability to make decisions for yourself that are in your best interests. No one can legally make decisions on your behalf unless it's shown that you lack mental capacity.

If you lack mental capacity, it means you're unable to do one or more of the following:

• Understand the information relating to a decision
• Weigh up the information you're given
• Remember the information long enough to make the decision
• Communicate the decision you've made - this includes verbal communication, written communication, sign language, and more

It could be the case that your loved one has mental capacity to make decisions in one area but not in others, or that they can only make a decision at certain times of the day. When considering mental capacity, you need to be able to make a decision and communicate it at the time it needs to be made.

However, taking time to weigh up a decision shouldn't be confused with a lack of mental capacity.

What happens if I don't have a Lasting Power of Attorney in place?

If you don't have a Lasting Power of Attorney in place and you lose mental capacity, your family will need to apply to the Court of Protection to have a deputy appointed to act on your behalf.

The Deputy can often be a complete stranger who will only act in your best interest, not what you would have wanted - this is also a very costly and lengthy process, often adding more stress to your family at a very distressing time.