Lasting Powers of Attorney

A Lasting Power of Attorney (LPA), or Power of Attorney in Scotland, is a legal document where you appoint someone to look after your affairs if you are unable to do so.

An LPA is just as important as having a Will but many people don’t realise this or have misconceptions about what an LPA actually is and when it comes into play.

A Will comes into effect when someone dies, but a Power of Attorney is the document needed if you are still alive but needing someone else to look after your financial affairs and to make decisions on your Health and Welfare when you are unable to.

Just because you are next of kin, you have no legal rights to deal with someone else’s financial affairs or care decisions and having a joint account doesn’t fix the issue as it will get frozen as soon as the bank are aware that one of the account holders is incapacitated.

When might I need an LPA?

Many people assume LPAs are only for dementia, however this is not the case. They play an important role in keeping our affairs in order under several circumstances:

• You are unwell/are hospitalised
• You are physically incapacitated (e.g. you have an accident, or a disability)
• You are mentally incapacitated (e.g. the onset of a mental illness such as Alzheimer’s or Dementia or after suffering a stroke).
• You need to shield/self-isolate

Without a Power of Attorney in place, nobody has the automatic right or ability to take charge of your finances. This includes your spouse or partner.

As a result, if you lose mental or physical capacity for whatever reason, temporary or not, critical bills, such as the mortgage, council tax or energy bills, could go unpaid. Your family would then have to apply for a Power of Attorney on your behalf, which can take months and cost thousands.

Not everyone will need to use an LPA but if you do need it, having one prepared will save a lot of heartache, stress and potentially thousands of pounds. Consider it your ‘just in case‘ protection. If you wait until something happens especially as things can happen unexpectedly and you or someone in your family loses capacity it is too late.

How to make a Lasting Power of Attorney

You can use a Solicitor or an estate planning service who can help prepare your power of attorney on your behalf which will involve a cost.

Our Will writing partners, Thomas Bradley & Co, offer discounted rates for our supporters. However, it is possible for you to prepare your own Power of Attorneys by using the UK Government webpage https://www.gov.uk/power-of-attorney which enables you to get these in place with only the Registration fee to pay (currently £82 each).

Types of LPAs

There are two different types of LPAs. The type of LPA you take out will determine what your attorney can make decisions about:

• Property and Finance Lasting Powers of Attorney
  This LPA allows your attorney to look after and manage any property you might have and your finances including bank accounts, mortgages, and investments.
• Health and Welfare Lasting Powers of Attorney
  This LPA allows your attorney to make decisions relating to your physical and mental health and welling such as where you live and what care you receive.

It is recommended that you do both types at the same time to cover all possibilities.

There are many reasons why people do not take out a lasting power of attorney:

• I’m too busy
• I don’t want to lose control over my finances indefinitely
• I don’t want just anyone to make decisions for me
• It’s too expensive
• It’s tempting fate
• I don’t like thinking about things like this.

Arranging your LPAs gives you the opportunity to choose someone you trust to look after your finances, make decisions on your behalf or both. They can only use it if you have registered it and you have given them authority to do so. You can take back control at any time, if you have the mental capacity to do so; an LPA can be used on a temporary or permanent basis.

Remember that doing a Power of Attorney is important in case you lose capacity either temporarily or permanently whilst you are alive, but you should also consider making a Will or, update an existing one if things have changed, to make sure that your estate is dealt with in accordance with your wishes on your death.

Common myths about LPAs

‘My family will sort everything if I can’t’ 

Nobody, not even your next of Kin, has authority to act on your behalf without a valid Power of Attorney.

‘I can just wait until I need it’

Unfortunately then, it may be too late. If you are taken ill with a stroke, heart attack or COVID-19 and are mentally or physically incapacitated (e.g. on a ventilator and cannot speak), whether temporarily or permanently, you will not be able to arrange one yourself.

‘I’m too young to have an LPA‘

Unfortunately, as recent events have shown, nobody can predict what might be around the corner, so adults of any age should have an LPA prepared just in case. 

‘I don’t need an LPA as I have a joint bank account’

This is a common myth. If one of the parties to a joint account loses mental capacity, the bank are liable to freeze the account until a valid LPA is put in place. 

‘I don’t need a solicitor to make an LPA, I can do it myself‘

You can use https://www.gov.uk/power-of-attorney to arrange an LPA yourself for free (not including registration).