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Why are Lasting Powers of Attorney so important?

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By Duncan Mitchell-Innes

A Lasting Power of Attorney (LPA) is a legal document which enables you to decide who you trust to make decisions about your finances, property or healthcare, in the event you are no longer able to do so, and appoint them as your Attorney.

Age-related issues, such as dementia, are often the reason that people are no longer able to make such decisions. However, an event such as an accident or illness could also have this impact.

Without a LPA (or a valid Enduring Power of Attorney, which was the precursor to LPAs), those closest to you could be faced with an application to the Court of Protection to give them authority to act on your behalf with regards to finances and, less commonly, in relation to health and welfare, as a court appointed Deputy.

The application process for being appointed as Deputy can take a long time and the costs are higher than for the LPA process. Most importantly, however, the choice of who to appoint to act in your best interests rests with the Court based on the evidence provided to it, not with you.

A Property and Financial Affairs LPA covers decisions your Attorney may need to make concerning your property and finances. This includes the more mundane matters, such as managing your bank account, but also includes significant decisions, for example, selling your home and investing the proceeds to provide an income in the event you need to go into a residential care home.

Under a Health and Welfare LPA, unless you add restrictions, your Attorney will have authority to make all personal welfare decisions on your behalf, save for:

  • Life-sustaining treatment, unless you have expressly authorised this; and

  • Where you subsequently make an Advance Decision (Living Will) to refuse treatment.

These decisions can only be made on your behalf if you lack the capacity to make them yourself.

A specialist solicitor will be able to help you with structuring and drafting your LPAs, and will manage the process of registering the LPAs with the Office of the Public Guardian. At TWM, our specialist solicitors regularly assist with the ongoing running of LPAs, so we understand how LPAs should be drafted to ensure the smoothest running of them if they need to be implemented. For example, there are several powers which are very useful for Attorneys to have when operating an LPA, but which are not included by the general law. We can advise on including these in your LPAs.

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