The Importance of a Lasting Power of Attorney: Safeguarding Your Future

Understanding, Planning, and Empowering Through a Lasting Power of Attorney

Life is unpredictable. Accidents, illness, or age-related conditions can affect anyone, at any time, potentially leaving individuals unable to manage their own affairs. While it is not always easy to think about a future where you may no longer have the capacity to make decisions for yourself, planning for such possibilities is an act of foresight and responsibility. A Lasting Power of Attorney (LPA) is a legal instrument designed to protect you and your interests, ensuring that someone you trust can make crucial decisions on your behalf if you become unable to do so. This article explores the importance of an LPA, its types, the process of setting one up, and why it should be an essential part of everyone’s long-term planning.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows you to appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf should you lose mental capacity. It is recognised in jurisdictions such as England and Wales, with similar arrangements existing in Scotland and Northern Ireland under different names. Unlike an ordinary power of attorney, which is only valid while you have mental capacity, an LPA remains effective even if you no longer have the ability to make your own decisions.

The Two Types of LPA

There are two main types of Lasting Power of Attorney:

• Health and Welfare LPA: This authorises your attorney(s) to make decisions about your daily care, medical treatment, living arrangements, and even life-sustaining medical decisions if you become unable to make these choices yourself.
• Property and Financial Affairs LPA: This enables your attorney(s) to manage your financial matters. This could include paying bills, managing bank accounts, collecting benefits or pensions, selling your home, and handling investments.

You can choose to set up either or both types of LPA, depending on your circumstances and preferences.

Why is a Lasting Power of Attorney Important?

1. Preserving Your Wishes

Without an LPA, if you lose capacity, decisions about your welfare or finances may not be made in line with your wishes. Family members might be left guessing what you would have wanted, or worse, unable to act at all due to legal barriers. With an LPA in place, your chosen attorney(s) are guided by your instructions, preferences, and values.

2. Avoiding Costly and Lengthy Legal Processes

If you become incapacitated without an LPA, your loved ones may need to apply to the Court of Protection to gain the legal right to act on your behalf. This process can be lengthy, expensive, and stressful, further compounding an already challenging situation. By contrast, an LPA streamlines the process, giving your attorney(s) immediate authority to act when needed.

3. Preventing Family Disputes

Without clear legal authority, disagreements can arise among family members about what is best for you. An LPA allows you to choose whom you trust most to make decisions, reducing the potential for conflict and ensuring clarity for everyone involved.

4. Maintaining Financial Security

Financial matters can quickly become complicated if you lose capacity. With a Property and Financial Affairs LPA, your attorney(s) can continue to manage your bills, mortgage, investments, and other financial commitments, protecting you from potential losses or legal complications.

5. Ensuring Personal Wellbeing

A Health and Welfare LPA enables your attorney(s) to make crucial decisions about your care. They can ensure you receive the medical treatment, care, and living arrangements that align with your values and preferences, even if you cannot express these yourself.

Who Should Consider an LPA?

There is a common misconception that LPAs are only for the elderly or those diagnosed with a medical condition. In reality, anyone over the age of 18 with the mental capacity to make their own decisions should consider arranging an LPA. Accidents and sudden illnesses can affect anyone, regardless of age or health status. Setting up an LPA early ensures that, should the unexpected occur, your affairs are managed according to your wishes.

How to Set Up a Lasting Power of Attorney

1. Choose Your Attorney(s)

Selecting the right attorney(s) is crucial. Think carefully about who you trust to act in your best interest. You can appoint more than one attorney, who can either act jointly (making decisions together) or jointly and severally (acting independently or together). It’s also wise to appoint replacement attorneys in case your original choice is unable or unwilling to act.

2. Decide the Scope of Power

You can specify the extent of authority your attorney(s) have. For example, you might allow them to make all decisions, or limit them to certain areas, such as managing a specific bank account or making decisions only about medical treatment.

3. Complete the Forms

Setting up an LPA involves completing official forms. These forms require detailed information, including your and your attorney(s)’ details, the powers being granted, and any guidance or restrictions you wish to include.

4. Certification and Witnessing

A certificate provider—someone who confirms that you understand what the LPA means and are not under pressure to sign it—must certify the document.  Jordans Solicitors will be your Certificate Provider. This is an important safeguard against abuse.

5. Register the LPA

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. Registration can take several weeks, so it’s advisable not to wait until it’s urgently needed. Once registered, your attorney(s) will have the legal authority to act on your behalf. Again, we will arrange the registration of the documents for you. 

Common Misconceptions About LPAs

• “I’m too young to need an LPA.” – Incapacity can happen at any age due to illness or accident. It’s better to be prepared.
• “My spouse or family can automatically act for me.” – Without an LPA, no one has an automatic right to manage your affairs or make critical decisions for you, not even a spouse or next of kin.
• “It’s complicated and expensive.” – While there are forms to complete and a registration fee, the process is far simpler and less costly than applying for deputyship through the courts after incapacity.

Consequences of Not Having a Lasting Power of Attorney

Without an LPA, your loved ones may face significant challenges if you lose capacity. They may not be able to access your finances, make timely decisions about your care, or prevent your affairs from being managed by someone unfamiliar with your wishes. In some cases, local authorities or the courts may be forced to step in, potentially resulting in decisions that don’t reflect your preferences.

Safeguards and Protection

The LPA process contains several safeguards to protect you from abuse or exploitation. These include the requirement for a certificate provider, the possibility to notify people of your application, and oversight by the Office of the Public Guardian. If there are concerns about an attorney’s behaviour, the OPG can investigate and take action.

Lasting Power of Attorney: Final Thoughts

A Lasting Power of Attorney is more than just a legal formality; it is a crucial tool for protecting your future, maintaining your dignity, and ensuring your wishes are respected if you cannot speak for yourself. Whether managing your finances or deciding on your care, an LPA provides peace of mind for you and your loved ones. By acting now, you can ensure that your affairs will be handled according to your values, no matter what the future holds.

Here at Jordans Solicitors, we are professional and friendly solicitors, proud to provide support for Power of Attorney applications. For legal assistance services you can trust, get in touch with us today.