What is an LPA?
A Lasting Power of Attorney (LPA) is a legal document where you give permission to someone, or multiple people, to make important decisions on your behalf in the event that you become mentally incapable of making decisions yourself.
What happens if I don’t have an LPA and I lose mental capacity?
Your next of kin, already dealing with a traumatic situation, are not legally able to take over the management of your affairs. The only option in this situation is to apply to the Court of Protection for a Deputyship Order. This is a legal document which enables elected representatives to make important financial and welfare decisions on your behalf.
The process is often lengthy, complex, and expensive and can mean that families are placed in financial limbo for significant periods of time. Even once the deputyship has been granted, it comes with the burden of ongoing costs and administrative duties that would have been avoided if an LPA had been put in place.
Aren’t LPAs for older people?
We are often contacted by families where an elderly relative has been diagnosed with dementia and moved to a care home. If there is no LPA in place, the family soon realise that they have no ability to assist their relative with their finances, for example, paying care home bills, utility bills, selling property and so on. Care home fees and other bills may well accumulate, and the only option is to pursue a Court of Protection Deputyship Order, which comes with the resultant delays, costs, and ongoing duties of being a court appointed deputy.
Many people assume that LPAs are only necessary for the elderly, but this is not the case, LPAs should not be overlooked by the younger population either. We have sadly experienced many cases where adults, across all ages, have been left incapable of making decisions following accidents or unexpected medical conditions. An LPA can only be put in place by a person when they have mental capacity to understand the document, and if an individual has been left cognitively impaired following an accident, this is sometimes no longer an option for them.
Isn’t an LPA included in my Will?
An LPA is not included in a Will. Although you may bequeath your assets to loved ones in your Will, this does not come into effect until your death. If you suffered a loss of mental capacity during your lifetime, the people named in your Will would have no control over your assets unless you had also made an LPA.
Are LPAs just for making financial decisions?
LPAs are not purely for financial decisions; there is also a different type of LPA that can be used to appoint people to make health and care decisions on your behalf.
If I lose mental capacity won’t my partner/spouse automatically be able to make medical decisions for me?
If you were unwell in hospital and unable to make medical decisions for yourself, strictly speaking your partner would have no legal right to speak on their behalf. This is the case irrespective of marital status.
Whilst medical professionals should always take the views of next-of-kin into account, unmarried couples in particular may feel their ability to take part in decision making is very uncertain. If you want your partner to have formal legal-standing, and the ability to speak on your behalf on health and medical matters, it is important to consider putting a health and welfare LPA in place.
When should I make an LPA?
If you’re over 18 and have mental capacity, then you can make an LPA. It is advisable for everyone to consider this, irrespective of your current age and health. LPAs ought to be considered similarly to other forms of life planning such as life insurance and wills.
What should I do now?
We strongly recommend that you discuss with your loved ones what you would like to happen if you became unable to make decisions for yourself, and that you ensure LPAs are in place.
If you would like to discuss any of the matters raised in this article, then please contact our Wills and Probate team on 03456 465 465 or email enquiries@rotherabray.co.uk
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
