The government has been trying to raise awareness of the importance of making a Lasting Power of Attorney and having it registered (as well as the importance of making wills). This has been borne out by an increase of 40% in registrations of Lasting Powers of Attorneys for the last quarter of 2015 against the same quarter for 2014 and is the highest recorded figure so far for any quarter.
It’s never easy to talk to friends and family about what would happen if our mental faculties deserted us but reading the following may persuade you to take that step and provide you and your family with some peace of mind.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity.
If you lose mental capacity, unless you’ve already completed a Power of Attorney, your loved ones will need to apply through the courts to become ‘deputy’, a long and expensive process. If you have arranged your LPA, that trusted friend or relative you nominated before you lost capacity can then act on your behalf.
You can appoint one or more attorneys to act for you, and you can determine how they must work together to make decisions on your behalf.
Who decides if I have mental capacity or not?
The Mental Capacity Act 2005 says a person is unable to make a decision if they can’t do one of the following: understand information relevant to a decision; retain that information long enough to make the decision; use or weigh that information; or communicate the decision.
When you make a LPA, a ‘certificate provider’ decides if you’re capable of making that choice. They can be someone you’ve known for two years or a professional, such as a doctor, lawyer or social worker.
Why should I get a Lasting Power of Attorney now, I’m perfectly healthy?
It’s a common misconception that people can arrange to make a LPA when they start to become ill. The key thing to remember is that you can only set up a Lasting Power of Attorney when you have mental capacity. Once you’ve lost capacity, it’s too late.
Here’s six benefits to having a Lasting Power of Attorney in place sooner rather than later:
- You can decide now, while you have capacity, who manages your finances should you lose capacity in the future
- It’s cheaper to do it now than your loved ones having to make an application to the court
- It’s legally binding so no-one can ignore it
- It helps your loved ones deal with your affairs quicker
- It can avoid problems with access to your monies to pay bills etc
- It provides you and your loved ones with peace of mind
How do I get a Lasting Power of Attorney?
While it’s possible to make an LPA without using a solicitor, an LPA is a powerful legal document and we would always recommend seeking expert legal advice, particularly if there are family issues and if there are complex assets involved, such as businesses, overseas properties and other assets.
A solicitor will be able to advise you on the best course action for your individual circumstances. If you feel you should make an LPA or have any questions at all about the process, do not hesitate to contact me.
Jeanette Berry heads up the Private Client team at Southerns and is an expert in LPA’s, wills, probate, trusts and estate planning. Should you wish to discuss any of the above issues please contact Jeanette or her team on 01282 422711 or email her – jberry@southernslaw.co.uk.