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Insights // 06 January 2020

What is the Role of a Lasting Power of Attorney?

Sophie Clark, in our leading Wills, Probate, Tax & Trusts team, explains the role of a Lasting Power of Attorney (LPA), why they are an important document and how they can help and provide peace of mind for you and your family.

The COVID-19 pandemic has touched the lives of everyone, here in the UK and beyond. In 2020, over one million people in the UK volunteered to support the NHS, while many others have continued to look out for and help loved ones and those in their community.

Despite this, many individuals and their families will continue to rely on Lasting Powers of Attorney (LPAs) as vitally important documents, now and in the future, allowing important decisions to be taken on behalf of those who are unable to make choices for themselves.

Lasting Powers of Attorney (LPA)

A Lasting Power of Attorney is a legal document whereby you give another person(s) (known as an attorney(s) the ability to make certain decisions on your behalf.

There are two types of LPA:

  • A property and financial affairs LPA, which allows your attorney to deal with your property and finances, as you specify.
  • A health and welfare LPA, which allows your attorney to make welfare and healthcare decisions on your behalf, but only if you lack mental capacity to do so yourself. This could also extend, if you wish, to giving or refusing consent to the continuation of life sustaining treatment (for example putting a ‘Do Not Resuscitate’ (DNR) in place).

Existing Enduring Powers of Attorney (EPA)          

Any EPA, made before 1 October 2007, will remain valid but only in respect of your property and affairs. If you wish to give authority over your health and welfare to an appointed attorney(s) you will need to make an appropriate LPA.

When and why should you make an LPA?

A range of leading surveys have indicated that around three quarters of people in the UK do not have an LPA in place.

Many people perceive that an LPA is something to only consider when elderly or faced with a serious health issue but none of us know what the future holds. Similarly, many people are not aware that a property and financial affairs LPA can be used by your attorneys whilst you retain capacity, with your consent.  

A person may be left mentally incapacitated or diagnosed with a serious illness at any stage in life, for example due to a brain injury caused by a car or sporting accident, or as a result of Dementia or Cancer. The Alzheimer’s Society predicts that over one million people in the UK will be diagnosed with Dementia by 2025, and that today one in six people over 80 are living with Dementia. However, there are also 45,000 people in the UK aged under 65 living with Dementia, which can also appear much earlier in life. Cancer Research UK estimates that one in two people will be diagnosed with Cancer, which sadly can happen at any age.

We advise clients at every stage in life, particularly when writing their Wills, to consider putting an LPA in place so they can rest assured that their wishes and loved ones’ interests are taken care of in the future.

Choosing an Attorney(s)

Careful consideration should be given when choosing your attorney(s). It should be someone who you consider trustworthy and to have the appropriate skills to make decisions in your best interests. You may appoint more than one attorney and you may also choose to appoint a successor to your attorney, in case they die or otherwise cannot act for you.

What happens without an LPA?

If you lack capacity to make a financial decision, then it may be necessary for an application to be made to the Court of Protection for an appropriate order, such as appointing another person to make important decisions on your behalf. This is both costly and time consuming may impact on you and those around you in immediacy.

Having an LPA in place can instead provide ease and reassurance for you and your loves ones.

Most care and treatment decisions can be made on your behalf without the need for a court application. However, if you wish to avoid potential disputes you can give a person(s) authority to make those decisions on your behalf by making a health and welfare LPA.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800. 

This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.

Sophie Clark

Sophie Clark

Solicitor

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