03 January, 2023
It is a commonly held misconception that if something should happen to you which affects your mental capacity, your next of kin would automatically be allowed to deal with your affairs on your behalf. Unfortunately, there is no automatic right for them to do this. It is therefore important to consider putting the legal framework in place ahead of time to enable your loved ones to assist you if you were to lose capacity or the ability to deal with your affairs yourself.
Lasting Powers of Attorney enable you to plan ahead and specify in advance what you would like to happen if you became unable to manage your own affairs in the future.
Lasting Powers of Attorney (LPAs) are legal documents which appoint one or more Attorneys who will be able to make decisions for you. The Attorneys are chosen by you and must be people that you trust to act in your best interests.
There are two types of LPA: Property & Financial Affairs LPA, which gives your Attorneys the authority to deal with your property and finances; and Health and Welfare LPA, which allows your Attorneys to make health and care decisions on your behalf if you are unable to do so yourself. This LPA can also include the right to give or refuse consent to life sustaining treatment.
You can only make an LPA whilst you have the capacity to understand the nature and scope of the document. If you lose capacity and have not made an LPA, then it may become necessary for your loved ones to make an application to the Court of Protection to appoint a Deputy to act on your behalf. This can be a long and costly process, at a time when your loved ones will need to be able to help you quickly and without complication.
You might think of making an LPA to be similar to putting an insurance policy in place. You hope that you will never need to use it, but if you do, it will be ready and waiting for your Attorneys to step in to help you when you most require it.
It is important that you choose Attorneys who you trust and who have the appropriate skills or knowledge of your affairs to be able to make decisions in your best interests.
An Attorney is only able to act for you if the document has been firstly registered with the Office of the Public Guardian. A Property and Financial Affairs LPA can then be used by your Attorneys both when you still have mental capacity as well as when you do not. This can be useful in the event that you are temporarily in hospital, for example, or physically infirm and need some day-to-day assistance. A Health and Welfare LPA can only be used by your Attorneys if you do not have capacity to make decisions about your care yourself.
In all cases Attorneys have a legal obligation to act in your best interests at all times and, in the case of the Property and Financial Affairs LPA, must consult with you before making any decisions if you do still have capacity.
It is possible to prepare your own LPAs and, in the same way as for Wills, there is no legal requirement that they should be prepared by a solicitor. However, you may feel that it is sensible to obtain legal advice in this area as a solicitor will be able to tailor your LPA document to your specific needs, for example where you have particular instructions or preferences. It is also important to consider any business or property assets that you own and how these should be dealt with if you lose capacity. A solicitor will be able to advise on the best way to deal with these assets within the LPA documents.
To find out more about Lasting Powers of Attorneys click here.
For more information contact Elizabeth Whitaker in our Wills, Probate, Tax & Trusts department via email or phone on 0333 207 1130. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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