The ever increasing importance of a Lasting Power of Attorney

We are all aware that at any point in our lives, we could be involved in an unfortunate incident that may affect our capabilities and our health, yet too few of us allow for any planning in this situation.

Having a Lasting Power of Attorney (LPA) in place can be an appropriate measure to deal with the unexpected, particularly as the Property & Finance LPAs can be used with the permission of the donor at any point. Even if the individual still has full mental capacity, they could also be used for a temporary period of illness or incapacity. It doesn’t necessarily mean that once they are used, the donor cannot make decisions for themselves again at any point in the future.

It could be of some reassurance that there is an alternative to those who have family members who do not have capacity and are incapable of managing their affairs, which would involve applying to the courts for a deputyship order.

However, this is often easier in relation to someone’s Property & Finance affairs as opposed to their Health & Welfare, but regardless this is more costly and time consuming than having LPAs put in place.

Hannah Berridge, Legal Executive at SMH Wills & Probate, takes a closer look at the two main types of LPA, relating their importance to some recent examples featured in the national news.

Property & Finance

A Property & Finance LPA allows you to appoint one or more attorneys to make decisions in relation to your property and financial assets, such as selling your house, paying bills or swapping banks. You can specify whether it comes into force straight away, or only when you have lost capacity.

Example

Many of us who live with a significant other may have some or all of the utility bills in just one person’s name, you may each have your own current and/or savings account, and furthermore you may both own the property or have both names on any lease/rent agreement.

This means that if you wanted or needed to sell/move then both parties would need to do so, whether this is instructing a solicitor for the sale or serving notice on your rent, you will BOTH have to do so. If one of you is unable to do this, then there is no automatic provisions for you to do it on their behalf.

For simple things like changing your gas or electric supplier due to an increase in costs, the utilities company will need to speak to the account holder every time you call, so without prior consent with a Property & Finance LPA, this wouldn’t be possible.

Hannah Berridge comments: “TV presenter, Kate Garroway, and her husband, Derek Draper who became incapacitated due to Covid-19 and was subsequently placed into a medically-induced coma, are in this situation. Both have separate accounts and she is now unable to handle his affairs, and is struggling.

“Being in a coma or ‘incapable’ in another way means it is too late to make the LPA, so we need to forget the attitude of being ‘too young’ to consider.

“It could be any illness or accident that might render someone incapacitated physically or mentally, but the Covid-19 global pandemic throws a further illness into the mix. This highlights how none of us know what’s around the corner with regards to our health and wellbeing.”

Health & Welfare

A Health & Wellbeing LPA means you can appoint one or more attorneys to make decisions in areas such as medical treatment, or the type of care you receive. This LPA however, can only be used when your capacity has been lost.

Example

Increasingly care homes now ask all new residents or their next of kin if there is a Health & Welfare LPA in place, and if not, strongly encourage this, providing one can still be made.

Of course every person has to have capacity in order to make an LPA, and quite often those going into care do not, or as a best case scenario it would become questionable. This in turn puts more stress and pressure on the family to put one in place more urgently.

Hannah Berridge comments: “BBC News reported about a 73 year old former qualified nurse, who was arrested for taking her 97 year old mother out of residential care, and back to home to be cared for after months of not being able to see her. She had been deteriorating in her latter years with little quality of life, and the family didn’t want to stand by and do nothing.

“Many people were horrified to learn of the Nurse’s arrest, but it all boiled down to not having a Health & Welfare LPA In place. Had there been, she could have spoken with the care home and local authority about alternative care.

“This is a prime example of the importance of having LPAs in place before it’s too late.”

In summary

Making LPAs not only leaves you safe in the knowledge that you have named someone you trust to handle your affairs should you become incapacitated, but it also saves that person or people a lot of time, hassle and worry should there not be one in place.

Once the LPAs have been made, if you can still make decisions for yourself then you can register your LPAs at any time. However if you leave it too late and lose the ability to understand what an LPA is, then it is too late to make one.

SMH Wills & Probate can be contacted on 01709 872106 or [email protected]