Guidance on Making a Lasting Power of Attorney

04 January 2017

By Head of Wills, Solicitor James Antoniou

Making a Lasting Power of Attorney is a vital part of planning for the future and protecting your interests. In case you’re not sure what a Lasting Power of Attorney is, it’s a legal document that lets you choose a person or people you trust to make decisions on your behalf, should you lose the ability to make your own decisions in the future.

A Lasting Power of Attorney (LPA) is completely separate from a having a Will, which only comes into effect upon death. A Lasting Power of Attorney is about decisions needed to be made during your lifetime.

The person you choose to make decisions on your behalf is called your Attorney. You can use your Lasting Power of Attorney to decide what type of decisions your Attorney can make for you. This could be about your property and financial affairs, decisions to do with your health, or both. Depending upon what you want your Attorney to do determines what type of Lasting Power of Attorney you should get in place.

Many people believe that their loved ones will be able to make decisions if needed, making a Lasting Power of Attorney unnecessary. Unfortunately that isn’t the case. For example, if a person has a bank account or property in their sole name then not even a spouse of many years would be able to legally deal with it.

A Lasting Power of Attorney (LPA) is crucial because there may be a time in your life when you are unable to make decisions yourself. This could be due to old age, illness or accident. So the question is: when is the right time to make a Lasting Power of Attorney?

One important point to note is that you can only put in place an LPA whilst you have full mental capacity. This means you are capable of making decisions yourself and that you understand the nature and effect of the LPA. Therefore if you wait too long you may lose capacity and you will not be able to get one. If you’re unable to put an LPA in place, your loved ones cannot do it on your behalf. Only you can decide to give another person the legal authority to make decisions that impact you.

If there are important decisions which you can’t make for yourself and you do not have an LPA in place, it means that someone will need to apply to the Court of Protection to be appointed your Deputy. This is a long and expensive process which requires the Court’s express approval of someone being appointed for you. This may not have been someone you would have chosen. In the absence of someone willing to do it, it could be that the Local Authority takes control over your affairs.

When is the Best Time to Make an LPA?

Making a Lasting Power of Attorney should really be done when you have someone you trust in your life to make important decisions for you. This should be someone who will be around in the long-term, and is commonly a spouse, children or both.

Unfortunately, illness and accidents can happen at any age. If you want to ensure that you have the right people making decisions for you when you’re at your most vulnerable, then it’s worth putting a Lasting Power of Attorney in place.

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