Lasting Powers of Attorney… all you ever wanted to know, but were afraid to ask!
Ridley & Hall is frequently approached by people wanting to put Wills in place because they are worried about what will happen to their estates after they have passed away, but when you ask the client who would manage their affairs if they were unable to whilst they are still alive, they often haven’t given it a second thought.
Lasting Powers of Attorney have already come a long way since their introduction in 2007, taking over from the old style Enduring Powers of Attorney (EPAs). One huge difference with the new Lasting Powers of Attorney (LPAs) is that not only do they govern financial decisions like the old EPAs, but you can also make a separate LPA to give someone power to make health and welfare decisions on your behalf. Another massive difference is the shift towards protecting the donor (the person making the LPA) more, with certificates of mental capacity being brought in, and the requirement for the documents to be registered with the Office of the Public Guardian before they can be used.
Even though LPAs have been around for over a decade now, they still seem to be treated with suspicion so to try and dispel the myths, here is a quick game of True or False to help with some of the most common misconceptions…
- If I have dementia, I am unable to make a Lasting Power of Attorney.
FALSE…Not necessarily. A person having dementia does not automatically mean that they cannot make a Lasting Power of Attorney. Providing they have the necessary mental capacity required, they can still put the documents in place.
- If there is a Lasting Power of Attorney for my financial and property affairs, my attorney is not permitted to make decisions about my health and welfare.
TRUE… if you wish for someone to make decisions regarding your welfare as well as your finances, you will need to make both types of LPA.
- Under a Lasting Power of Attorney for health and welfare, my attorney cannot make decisions about the care I receive whilst I have mental capacity.
TRUE… a health and welfare LPA can only be used once registered and only when the donor is unable to make those decisions for himself or herself.
- If a person has lost their mental capacity, there is nothing that can be done to help manage their personal affairs.
FALSE…whilst it is always better to have things in order and make LPAs whilst the person still has mental capacity, if nothing has been put in place in advance, loved ones can apply to the Court of Protection for a “deputyship order” under which the Court appoints them to manage the person’s property and financial affairs, and their health and welfare (although this is less common).
- Making Lasting Powers of Attorney is really expensive.
FALSE… Making an LPA is cheaper than your family having to make an application for a deputyship order. Using a solicitor to guide you through the process means that the forms are completed correctly and tailored to your own individual circumstances. A solicitor can also ensure that all parties understand the documents and how they can be used, helping to prevent future problems.
- I have a Power of Attorney to help someone with their property and financial affairs, so I can help them by sorting out their Wills for them.
FALSE…being an attorney does not grant you the authority to change a person’s Will. This remains confidential to the person and the Will cannot be altered by the attorney or anyone other than the person themself.
- A Lasting Power of Attorney can only be used once it has been registered with the Court, irrespective of mental capacity.
TRUE…all documents have to be registered in order to be used. It is best to register the LPAs as soon as they have been completed by all the parties to avoid potential issues arising in the future.
- By making a health and welfare Lasting Power of Attorney, my attorneys can overrule any decisions made by a doctor.
FALSE…your attorneys could only overrule a doctor’s decision if you have granted them the authority to give or refuse consent to life-sustaining treatment on your behalf. If you do not give them this additional authority, then the doctors will act in your best interests and be responsible for the decisions about your care, although they may consult with your loved ones, where it is practical and appropriate to do so.
- I am giving up control over all my own affairs by appointing an attorney to deal with them on my behalf.
FALSE…as long as you have capacity to make decisions for yourself, you are able to manage your own affairs, even if you have made an LPA. Your attorneys have a legal duty to always act in your best interests and must help you to make your own decisions wherever possible.
- I’m too young to make a Lasting Power of Attorney, as I’m only 65 and don’t have any memory problems.
FALSE… you are never too young to make an LPA (except you need to be over 18) and you actually need to have mental capacity to make your own decisions to be able to make one.
You should look at an LPA like you would an insurance policy: you hope you will never need it, but having one gives you peace of mind.
We hope you now have more insight into what Lasting Powers of Attorney are and how and when they should be used. If you wish to put Lasting Powers of Attorney in place, please contact us on 01484 538 421 for further information.