Dispelling the myth | Lasting Power of Attorney

5 mins

A Lasting Power of Attorney (LPA) is a legal document that allows you (the ‘donor’) to select one or more persons (known as ‘attorneys’) to assist you when making decisions or making decisions on your behalf.

There are a few reasons why you may need help making decisions or for decisions to be made on the donor’s behalf;

  • You may be temporarily indisposed as a result of an illness or accident. In some situations, you may be indisposed for other reasons, including being overseas.
  • You may indefinitely be no longer able to make your own decisions, whether this is a result of an unexpected accident or health crisis.

It is a common belief that one needs to be ‘elderly’ in order to have a Power of Attorney (PoA). However, this is not true. 

In fact, the only two requirements for creating an LPA are that;

  1. You must be the age of 18 or over
  2. You must have mental capacity

If you do not appoint an attorney before you lose mental capacity, your relatives will have to endure the expensive and long-winded process via the Court of Protection in order to be appointed as a deputy. Deputies and attorneys have the same power, except they are appointed at different times – attorneys being appointed whilst a person has mental capacity, and deputies being appointed after the donor has lost mental capacity.

Furthermore, whilst the Court of Protection will do what they can to follow what they think your wishes would be, there is no guarantee that the deputy being appointed would be the person you may have chosen.

However, by appointing an LPA, you are actively choosing someone you trust and know would carry out your wishes well.

Why should you act now?

Sometimes, by the time appointing an LPA is discussed with family and friends, it can be too late. If you have decided who you would like to make decisions on your behalf, it’s important to know that the Office for Public Guardian is currently taking six months to register the document, bearing in mind there are no mistakes in the file.

Perhaps the most vital reason for acting now is that mental incapacity and age are sometimes not related. Accidents, illnesses, addictions, and mental health problems can occur at any age.

If an accident occurs, whether temporary or permanent, and you are left without an LPA set up, yourself, family and friends are likely to face serious difficulties, and the moment you then need an LPA most is the moment your financial and welfare affairs will be in limbo whilst the Court of Protection is trying to appoint a deputy.

Useful to know

You can register an LPA from as little as £82. However, choosing not to appoint an attorney and, instead, waiting till you have lost mental capacity will result in a cost of £365 being paid to the Court of Protection on submission of the application.

How long does it take for the Court of Protection to appoint a deputy?

The process of the Court of Protection appointing a deputy can take up to six months. The applicant has an obligation to notify certain groups of people, including relatives relating to the person lacking capacity.

Once the order has been submitted after notifying the relevant people, the parties notified have a right to object to the Deputyship application. If this is the case, the application will become disputed, which can take many more months to settle.

If an LPA is made and created, it can simply be filed away and ready to be used if needed. Whilst one does always have the option of appointing a deputy through the Court of Protection, it is important to remember that if this is the case;

  • The Court will do their best to appoint a deputy who they believe you would want; though this is never a guarantee.
  • The process of appointing a deputy via the Court is a slow and expensive option which could cause your loved ones unnecessary stress and anxiety.

Many people believe that having a Lasting Power of Attorney, whether for your financial and/or health affairs, is specifically for older people. However, if the last two years have taught us anything, it is that life is unpredictable – and a life-changing accident or debilitating illness may happen to anybody, at any age. Whilst it can seem daunting and pessimistic to create an LPA at a young age, or any age, once it is done, it’s done, and you can file the document away, ready to be used if needed.

This article was written by Heidi Berry, a Director at Price Bailey. Heidi and the team can provide you with advice and support for creating a Power of Attorney. We also have access to qualified accountants and tax advisers, and can support you in writing a will, or going through the process of probate. If you would like to get in touch with Heidi regarding anything mentioned in this blog you can fill out a form below.

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