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Do I Really Need a Lasting Power of Attorney?

Do I Really Need a Lasting Power of Attorney

13th September 2020

Thinking about being in a condition where you are no longer able to take care of yourself can be uncomfortable. Yet, it’s important to protect your future by planning ahead in the event that something were to happen to your mental or physical faculties. If you are in a situation where you can no longer make decisions for yourself, you need a way to ensure that your wishes are being met. This is where Lasting Power of Attorney comes in.

What Is Lasting Power Of Attorney?

Lasting Power of Attorney (LPA) is a legal document that enables someone else to act on your behalf and make decisions for you in a situation where you are longer able to do so yourself. There are two types of lasting power of attorney, one for your health and wellness, one for your property and finances. With these types of LPA, you choose a person known as an attorney who is then able to make decisions on your behalf.

Health and Welfare LPA

A health and welfare LPA grants your attorney the right to make decisions regarding your medical care and daily routine. Here are some examples of the decisions that your attorney could make on your behalf:

  • Your medical treatment including life-sustaining treatment
  • Where you live and if you should move into a care home
  • What to buy and where to shop
  • What you eat and how you spend your day

A health and welfare LPA can only be used if you lose capacity. You are not able to have someone else make these decisions for you simply because you don’t want to.

Property and Financial Affairs LPA

A property and financial affairs LPA allows you to appoint an attorney to make decisions regarding your finances and property. This includes:

  • Handling your taxes
  • Paying bills
  • Maintaining your property
  • Investing your savings into stocks or other assets

With a property and financial affairs LPA, you can specify when you want your attorney to be able to act on your behalf. Unlike a health and welfare LPA, you can choose to have your attorney make decisions for you even if you haven’t yet lost capacity to do so.

What Is Mental Capacity?

Every day, we all make decisions about our lives. The ability to make these decisions is considered mental capacity. People may not be able to make decisions some or all the time. This could be due to a brain injury, dementia, a stroke, or a learning disability. In these cases, a person is deemed to not have mental capacity.

It is important to be aware that living with a mental health condition such as depression, schizophrenia, or bipolar disorder doesn’t necessarily mean that someone lacks mental capacity.

Who Decides If Someone Has Mental Capacity?

The Mental Capacity Act 2005 is used to establish standards for mental capacity. It states that 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
  • Communicate the decision

When you make a Power of Attorney in England and Wales, a ‘certificate provider’ decides if you’re capable of making that choice. This can be someone you’ve known for two years or someone with relevant professional skills such as a doctor or a lawyer.

Why Lasting Power of Attorney Is Important?

Establishing an LPA is essential to ensuring you and your loved ones have their preferences honored in case you are no longer able to decide for yourself. You can’t just assume that a doctor will listen to your family’s opinion even if you don’t have an LPA.

While healthcare professionals often consult with a person’s ‘next of kin’, they are not obliged to act on their suggestions. This is because a next of kin doesn’t have any legally binding influence on decision making.

You can address the fact that your next of kin doesn’t have automatic control of your care by formally appointing an attorney in a health and welfare LPA. Making an LPA is the best way to ensure that your loved ones have the authority to legally act upon your wishes. Without it, their input could be dismissed which can lead to frustration for them as they are the ones most likely to speak for you as you would have spoken for yourself.

What To Do If Someone Has Already Lost Capacity?

If someone is unable to make decisions for themselves but did not set up an LPA in advance, you can apply to the Court of Protection to ensure their interests are in the right hands. The court will appoint a deputy, usually a family member or close friend, to make decisions for the person. There are personal deputies for both property and financial affairs, and health and welfare.

While filing for a deputy can put the decision making in the hands of a loved one, it can be a long and expensive process. We highly recommend that you set up an LPA before you lose capacity to ensure that a loved one is able to make important decisions on your behalf.

Summing Up

We know that thinking about the future can be stressful. We believe that everyone should be treated with respect, kindness and receive a personal service that meets their needs in a relaxed, un-rushed environment. Elizabeth Middleton Solicitors is here to help you prepare for the future and ensure your wishes are followed, which is why our expert legal team specializes in Lasting Power of Attorney, Wills, Probate and Conveyancing. Don’t wait for life to happen – Get in touch today to learn more about our LPA services and gain the peace of mind that your future is taken care of.