The benefits of having a lasting power of attorney

By David Benest, managing partner at BCR Law LLP

‘I must get around to it…’ Words we all say to ourselves about so many things. Everyday life has a habit, however, of making us push off the things we should do. Of course, we know we should make a will, but even fewer of us think about making a lasting power of attorney (LPA) or have even heard of the notion of doing so.

Dementia is an insidious disease which robs many of their faculties before time renders them unable to deal with their financial and other affairs. The lack of mental capacity that it engenders can paralyse the subject’s financial life as well as cruelly impacting them in a medical sense, adding to the heartache for family members, which often accompanies a loved one’s illness. Many assume that family members will readily be able to deal with financial affairs and that the ‘next of kin’ can step in. That is wrong.

It is not just age-related illness and infirmity, of course, which can rob a person of capacity; accidents do happen. Life can change in a split second, whether that be by reason of a sporting injury, an accident at work or the sudden onset of an unexpected illness. Again, without forward planning, the lack of capacity to deal with one’s finances and health decisions can have a significant impact on self and others.

What is an LPA?

An LPA is a legal document registered with the Court that gives another individual the legal authority to look after specific aspects of someone’s financial affairs or health and welfare, should they lose capacity.

There are two types of LPAs – property and affairs, and health and welfare – one covering decisions about money matters and the other decisions about personal health and welfare.

A person appointed as a property and affairs attorney can make decisions on things such as dealing with bills, running bank accounts and investing money. A health and welfare attorney can generally make decisions about where a person should live, how they should be treated medically and with whom they might have contact. Given the nature of these decisions, it is important that the appointment is of someone trusted. Equally there are protections in place: decisions must be taken in the subject’s best interests and ultimately LPAs, and their use, are policed by the Court.

Without an LPA, the alternative is to make an application to the Court to appoint a delegate to deal with matters, or for stand-alone applications to the Court to make certain decisions. Each of those at increased delay and cost, as well as dealing with the limbo which a lack of capacity brings. So, the benefits of having an LPA in place are obvious, the least of those that it enables decisions and actions to be made without delay or the need to further involve the Court.

Given that, everyone should be encouraged to put LPAs in place. But they are important and powerful documents. We at BCR Law LLP have significant experience of advising in relation to them and to putting them in place. Whilst many are straightforward they are not without their complexity and without proper legal advice there is a risk of making matters unintentionally difficult for attorneys in the future. Everyone should be encouraged to put an LPA in place, but to take appropriate advice before they do so.

E: david.benest@bcrlawllp.com T: 01534760860

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