A totally unexpected emergency admission to hospital recently brought home to me that we don’t know what the future has in store for us, and reminded me of the saying my Mam used to drill into me: “Never put off tomorrow what you can do today”.
Setting up an LPA is one of those things that many people put off until tomorrow. Our advice is that it’s never too early to do an LPA, but it can be too late.
The importance of having an LPA:
People tend to assume that LPAs are for the older generation, but any of us, at any time, could lose mental capacity, from a serious injury or accident, a disease, or illness. By the time an LPA is needed, it could be too late, because to put one in place, you have to have mental capacity. Setting one up now can give you and your family peace of mind for the future.
What is an LPA?
A Lasting Power of Attorney (LPA) is a legal document where you appoint one or more people that you trust, known as ‘attorneys’, to manage your affairs.
There are two types of LPA:
A Property and Financial Affairs LPA covers decisions about your finances and property and can include paying your household bills, collecting your income and benefits, investing money or selling your house if necessary. A Property and Financial Affairs LPA can be registered and used straight away, even when you still have capacity. This can be really useful for situations such as if you are living abroad, are in hospital or are physically unable.
A Health and Welfare LPA allows your attorney to make decisions on things like where you live, or day to day care such as your diet and what clothes you wear. This type of LPA can be registered but only used once you have lost mental capacity.
Issues that you could experience if you don’t have an LPA:
Many people assume that if you’re married or in a civil partnership, your spouse/civil partner will be able to deal with your bank accounts and pensions and make decisions about your health and welfare if you lose capacity, but this isn’t the case. This is something that has been in the media recently with Kate Garraway, a well-known journalist, discussing the “financial mess” she faced as her husband Derek was in hospital with Covid and her inability without an LPA to access things like bank accounts and insurance accounts.
Once you have lost mental capacity you cannot set up an LPA. For property and financial affairs your family must apply to the Court of Protection to appoint a Deputy. This can be an expensive and time-consuming process. While the Court will make every effort to act in your best interests, you can’t assume that they will make the decision you would wish for and choose who you would want to act as your Deputy.
If you have a Health and Welfare LPA and you lose capacity, your attorney can make decisions which you would have been able to make yourself such as whether to receive medical treatment or what your care arrangements should be. If you don’t have a Health and Welfare LPA and you lose capacity and need to move into a care home, the local authority will make the decision over where you live, based on what they consider to be in your best interests.
Having an LPA allows you to plan for future decisions by appointing attorneys that you trust who are there to act in your best interests, taking into account all that they know about you or that you have communicated to them about your feelings, wishes and beliefs.
If you’d like to know more about setting up an LPA, we’re happy to help. Just get in touch.