What will happen if I do not have a Lasting Power of Attorney?

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a Legal Document that allows you, the donor, to choose one or a number of people to step into your shoes and make decisions for you should you lack the mental capacity to do so yourself.

If you lose the mental capacity to make your own decisions and you do not have a valid Lasting Power of Attorney (LPA) in place, then your family do not have the legal authority to manage your affairs. Unfortunately, this is a very common occurrence for families and loved ones. 

Defining mental capacity

UK courts define mental capacity as the power to make or communicate particular decisions when required. It’s important to realise that mental capacity can be present at any stage of life, and can even come back after being lost. To have it, you must understand the decision in question and why you need to make it, plus consider the expected result of your choice.

Once you have lost mental capacity, you are unable to make an LPA. If your family need the authority to deal with your affairs then they must apply to the Court of Protection for a Deputyship Order. 

In comparison to an LPA, a Deputyship Order is far more costly and lengthy to obtain from the Courts. In addition, anyone can apply for a Deputyship Order meaning that the authority to make decisions on your behalf may be given to someone that you would not have chosen.

Who can be my Lasting Power of Attorney?

The people that you choose to step into your shoes are called your attorneys. Your attorneys must be over 18 years of age and could be a:

• Husband, wife or partner 
• Daughter or Son (over the age of 18)
• Relative
• Friend
• Professional person including a solicitor, doctor or social worker

Your attorneys must have the mental capacity to make their own decisions and should be people that you trust as they must make decisions that are in your best interests, both in the short-term future and long-term future. They do not have to be a UK citizen nor reside in the UK and it is usually a good idea for your LPA to be from a younger generation than yourself. When choosing your attorney(s), consider how well they look after their own affairs, whether they would act in your best interest and how well you know and trust them. 

If you decide that you would like more than one attorney you need to decide how they will make decisions. Once you have decided on your potential attorneys, it is worth talking to them about the roles and responsibilities and confirming they will be comfortable to make important decisions on your behalf.

There are two ways in which you can appoint multiple people to be an LPA.

Jointly 

This will mean that all of the attorneys must agree and sign off on the same decision on behalf of you, the donor. This can ensure that all involved parties always reach a consensus on any varying opinions, providing extra security that a single attorney may not have been able to guarantee.

Jointly and severally

This means that any one of the attorneys can make decisions on their own or with other attorneys. This empowers the attorneys chosen by you to act on both their own behalf and in conjunction with each other. This means that if one party is unavailable for any reason, the other can continue making decisions with equal authority. 

Is there more than one type of Lasting Power of Attorney?

There are two types of LPA; one that deals with Property and Financial Affairs and another that deals with your Health and Welfare Decisions. 

Some examples of how each of the documents are used could be:

Property and Financial Affairs

• Managing your bank accounts
• Paying bills
• Collecting benefits/pensions
• Selling your home

Your attorney dealing with property and financial affairs can not be subject to a Debt Relief Order or be bankrupt.

Health and Welfare Decisions

• Medical Care
• Moving into a care home 
• Your daily routine e.g. washing, dressing, eating
• Life-Sustaining Treatment 

It is important to note that the Health and Welfare LPA cannot be used until you have lost mental capacity, whereas you can decide to allow your attorneys to use your Property and Financial Affairs LPA whilst you have mental capacity to enable them to assist you.

LPA’s must be registered with the Office of the Public Guardian, which can take up to 20 weeks for the registration process to be completed. If no provision for an LPA has been made, then this might result in the need for an application being made to the Court of Protection to be appointed as a Deputy, which is a costly and time-consuming procedure. 

What will happen if I do not have a Lasting Power of Attorney?

The need to establish an LPA is ever-increasing. There are many reasons in everyday life that may mean someone needs to act on your behalf. This could be temporary, for example, you may be in hospital and need help with an everyday task such as paying a bill. Or it may be about long-term plans, for example, you have been diagnosed with dementia and may lose the capacity to make your own decisions in the future. 

Making a valid LPA when you have mental capacity ensures that you are in control of how you would like to manage your affairs and how you would like them to do so with minimal delay.

In one of our previous blogs, Neil Raiseborough, an Alsters Kelley Director and Head of Wills, Probate, Tax & Trusts, explained the importance of not assuming your significant other would automatically be able to deal with your bank account and pensions, and make decisions about your health care, if you lose the ability to do so. Without an LPA, they will not have the authority.

How can Alsters Kelley help?

Our view is that almost everyone should put in place an LPA. If you or anyone you know are looking for assistance in this, we can help. Headed up by Neil Raiseborough, our Wills, Probate, Tax and Trusts solicitors have helped thousands of individuals on the drafting of Wills and Powers of Attorney in a friendly, helpful and sensitive manner. 

Give our specialist solicitors a call on 01926 356000 or email Neil at neil.raiseborough@alsterskelley.com.