Planning for the future is a vital part of ensuring personal affairs are managed effectively if capacity is lost.
A Lasting Power of Attorney (LPA) is a legal document that allows an individual (the donor) to appoint a trusted individual (or individuals) to make decisions on their behalf should they become unable to do so.
Failing to put in place an LPA can lead to complex, time-consuming, and costly consequences.
Types of LPA
There are two types of LPA in England and Wales:
Property and Financial Affairs LPA
This covers decisions such as managing bank accounts, paying bills, and selling property.
Health and Welfare LPA
This relates to care needs, medical treatment, and life-sustaining decisions.
Both must be made whilst the donor has mental capacity and registered with the Office of the Public Guardian to be valid.
What does it mean to lose capacity?
Mental capacity refers to the ability to make a specific decision at the time the decision needs to be made. This includes understanding information relevant to decision making, retaining it long enough to weigh up options, and communicating a choice.
Capacity can be lost gradually, such as through dementia, or suddenly, due to a stroke or serious injury. Importantly, capacity can fluctuate, and it may be that an individual might lack capacity at a particular point in time but regain it later.
As well as time-specific, capacity is also decision-specific, and a person may lack the capacity to make one kind of decision, but retain capacity to make others.
Without the necessary capacity, you may be unable to manage your financial affairs, make decisions about your health and welfare, or even handle day-to-day matters.
Critically, once capacity is lost, it is too late to put an LPA in place.
What happens if you lose capacity without an LPA?
If you lose mental capacity and do not have an LPA in place, no one automatically has the legal authority to manage your property or finances, and only the healthcare professionals treating you will be able to make health or welfare decisions on your behalf, acting in what they believe to be your best interest. In this situation the Court of Protection must be involved, and someone (often a loved one) must apply for a deputyship order to act on your behalf. This process can be:
Lengthy
The application process typically takes 6-12 months, and potentially longer if contested or delayed. During this time, no one can legally manage your finances or make decisions, which can affect bill payments, care arrangements, or property sales.
Costly
Costs include application fees, legal fees, medical assessment costs, and ongoing annual fees for example. A deputyship is much more time consuming and costly compared to making an LPA.
Restrictive
A deputy’s powers, once granted, are limited, and they are subject to ongoing court oversight.
Stressful
Applying to the Court of Protection for a deputyship order is a process that can be slow, expensive, and emotionally taxing, especially if there is a disagreement over who should apply or how decisions should be made. The lack of clarity and legal authority can cause confusion, disputes among family members, and emotional distress at an already difficult time.
Why set up an LPA?
An LPA is a legal document that allows you to appoint one or more trusted individuals (your attorneys) to make decisions on your behalf if you lose capacity. Key benefits include:
Control
You choose who acts for you and you can set out clear instructions or preferences.
Speed and simplicity
Attorneys can either act immediately once the LPA is registered (Property and Financial Affairs LPA only), or once you’ve lost capacity.
Peace of mind
Having a valid LPA in place can avoid the cost, delay, and complexity of court proceedings.
Respect for your wishes
LPAs can be tailored to your wishes and ensures that future decisions made by your Attorneys reflect your values and preferences.
A vital safeguard for everyone
An LPA is a vital part of lifetime planning, just like a Will. Without it, your finances, health, and welfare decisions could fall into the hands of the Court rather than trusted individuals of your choosing.
To discuss your requirements and find out how we can help you, please get in touch.
