Why you should consider making Lasting Power of Attorney or a Will

Many individuals don’t understand the vital importance of having a Lasting Power of Attorney (LPA) or a Will in place, whilst they are alive.

It is often one of those jobs that tends to get put on hold, perhaps because some people don’t really know what an LPA or a Will is; how it can really benefit them; or are superstitious about even talking about such things; or more commonly, just think they will get round to it when they are ‘older’.

Life is precarious, and a person’s physical or mental health can, unfortunately, change overnight – whether in declining health, or as a result of an unpredictable life – changing event such as a catastrophic stroke, sudden accident or stressful event. Don’t make the same mistake of thinking that a Lasting Power of Attorney is just for the elderly.

However, without a valid LPA in place, you may be powerless to make decisions
about your relative’s health or finances whilst they are alive – leaving others to step in
and take control instead. Don’t just assume that you will be automatically consulted
and involved in decision making over your spouse or parent’s health or financial
affairs, if one day they lose mental capacity to make decisions for themselves.

Part of the problem is, that even discussing an LPA or Will with your relative can be
a very sensitive issue. What’s more, families often get confused between a Lasting
Power of Attorney and a Will. If you need help getting started, read our blog:

Lasting Power of Attorney: 4 ways to start the conversation.

In simple terms:

Lasting Power of Attorney (LPA) – is a binding document made whilst you are
alive, and before you lose mental capacity, that transfers power to another person
you have specifically chosen (your ‘Attorney’), to make your decisions about your own
health and welfare, and/or property and financial matters on your behalf – as if you
were making those decisions yourself. The LPA protects your health and financial
interests at a time when you can’t, and ensures that your appointed representative
(Attorney) will act in your best interests at all times.

It is quite common for an Attorney to step into action only once it is considered that
the individual has lost mental capacity. The trouble is then proving lack mental
capacity, and this can cause delays whilst critical decisions may be put on hold.

Tip: to avoid this problem, when drafting your LPA, there is an opportunity to choose whether
you want your Attorney to make some decisions as soon as the LPA is registered,
rather than waiting until you lose mental capacity. This is a popular option and
should be considered. Effectively, even though you have mental capacity and still
retain absolute control over your own decisions (unless, of course, you don’t want
to), this option allows your Attorney to make some decisions for you with your prior
permission. For example, if you are going abroad and something needs doing or signing in your
absence. If, at some future stage, you then lose mental capacity, your Attorney does
not need to prove it on each occasion, as they are already acting as your Attorney and can
simply take over control of your affairs, seamlessly. This option, if selected, can be
particularly helpful for an elderly or ill, spouse or relative, who may be finding some
decisions or matters too stressful to handle. They can just ask the Attorney to take
over the particular task instead.

Advantages of a Lasting Power of Attorney:

Gives you control to appoint someone you trust to make decisions on your behalf,
as if you were making them yourself.
Saves time if critical or important medical and/or financial decisions have to made
quickly.

Otherwise: without a valid Power of Attorney in place, an application has to be made
to the Court of Protection to seek a Deputyship Order. This can be expensive and
take time. In the meantime a ‘stranger’, who may be unfamiliar with your relative’s
wants or needs, may be appointed to act in their best interests instead, and could
make decisions which you know your relative would not have wanted or wished to
have imposed upon them.

Key: An LPA ceases automatically on death, and the Will takes over.

A Will – confers powers to the appointed Executors after death, to act in your best
interests and in accordance with the terms of your Will. A Will can have tax
advantages, too. It’s often a good idea to seek legal or professional advice if you
have a large or complicated estate.

Advantages of a Will:

Your house, assets, goods and wealth will be distributed to your chosen beneficiaries
in accordance with your predestined wishes; thereby passing your treasured and
accumulated possessions and finances to those who you particularly want to benefit
after your passing – perhaps even including charitable or other worthy causes you
support.

Otherwise: your estate will be caught by the Intestacy rules and allocated in a
predetermined order – possibly by-passing some relatives, friends or organisations
that you would have wished to benefit, had you had the opportunity.

Closer look at Lasting Powers of Attorney

There are two types of Lasting Power of Attorney:

1. Health and Welfare decisions
2. Property and Financial decisions

Some key considerations:

The person making the Lasting Power of Attorney is known as the “Donor“.
The Donor has to have mental capacity to make the Power of Attorney and
understand what they are signing.
Must be at least 18 years old.
The person who the Donor gives power to look after them is known as their
‘Attorney’.
You can have one or more Attorneys (usually up to 4). But beware! Sometimes,
too many Attorneys can make it hard to get a decision made if they can’t work
together and agree.
Your Attorney must also be at least 18 years old and have mental capacity to
understand and be willing to make decisions on behalf of the Donor.
Ideally, your appointed Attorney(s) should be someone you trust and know well,
as they may be asked to make critical decisions on your behalf in the event you
lose mental capacity. Common examples include a spouse, partner or adult
children. You can appoint replacement Attorneys too – see below.
It is, of course, advantageous if your Attorney(s) lives close to you and each other,
in order to keep in regular contact, co-sign any paperwork, and to make any necessary (joint) decisions
together.
The Lasting Power of Attorney also gives you the opportunity to state any ‘preferences’, or ‘wants’ you would like your Attorney to do on your behalf that are not mandatory; or else, you can give specific instructions as to things that they must do.
Health and Welfare Power of Attorney has the option of specifying whether your Attorney should or should not give consent to, or refuse, life-sustaining treatment on your behalf. This could be for critical emergency surgery or a host of other serious medical conditions requiring decisions on treatment.
You also have a choice whether or not you want to notify anybody else (eg your GP or family member), that you have registered your LPA, just in case you feel pressurised into making it. This added safety net will allow them to be notified of the LPA’s existence, and they can then raise any objections.

Important Decisions:

When completing a Power of Attorney, there are 3 key decisions you need to ask yourself:

1. How many Attorneys do I want?
2. Who do I want to be my Attorney(s)/replacement Attorney(s)?
3. How should they make decisions on my behalf?

If you only have 1 Attorney, then they effectively have ‘carte blanche’ authority to
make all decisions as mandated under the LPA as they deem fit, whilst acting in your
best interests at all times.

If you have two or more Attorneys, then there are several options as to how you can
decide how they should act. They can either work:

Jointly – If acting jointly, then the Attorneys must agree unanimously on every
decision, however minor or important. This can have obvious advantages, but
conversely, can equally cause to delays. For example, if the Attorneys live a distance
apart and a cheque needs signing by all the Attorneys. Worst still, if they fall out or
cannot reach a decision between them, then an application will have to be made to
the Court of Protection, and that can be expensive and also delay matters whilst
important decisions are left pending.

A major disadvantage of having Attorneys acting jointly, is that if one dies or can no
longer act, then no Attorneys are able to act. It is a case of all or nothing – which
can be restrictive, and actually be counter-indicative of what you are trying to achieve
in your LPA.

Jointly and severally – This is a popular option. Either your Attorneys can
make decisions together (ie jointly) or on their own (severally). This
arrangement is more flexible and can allow Attorneys to make important decisions
jointly, but simple or urgent decisions on their own. Therefore, the Attorneys can
choose in which circumstances they want to act jointly and which they can act alone.
It also has the advantage that, if one Attorney dies or can no longer act, the LPA is
still valid because the other Attorney(s) can continue to make decisions.

Jointly for some decisions, jointly and severally for other decisions – You can
specify if you want your Attorneys to agree unanimously on some decisions, but can
make others on their own (i.e. severally). However, you need to clearly state exactly
which decisions your Attorneys must make jointly and agree unanimously, and which
they can deal with on their own. Beware! You will need to be very precise as to your
choice of wording and intentions here, so that your Attorneys know exactly where
they stand on certain decisions, and don’t fall ‘between two stools’.

Again, problems arise if one of your Attorneys dies or can no longer act, then neither
remaining Attorneys can make any of the joint decisions, and your LPA can then only
be used to make those decisions that you have stated previously to be made severally.

Similarly, if you only have one Attorney (eg a spouse) and no replacements, then if
that Attorney is unable to act for whatever reason, the LPA ends.

The Government website gives some helpful examples of the types of health and
welfare, or property and financial decisions, you may consider specifying as being
joint and several, and suggests some useful wording for your LPA.

https://www.gov.uk/government/organisations/office-of-the-public-guardian

Replacement Attorneys –

To avoid the LPA failing, we always recommend that you consider including a
replacement Attorney(s) as a substitute in the event that one of your original
Attorney(s) dies, loses capacity, or no longer wants to be your Attorney.

Generally speaking, unless you specify otherwise, your replacement Attorney will
usually step into the shoes of the Attorney who is no longer acting for you and fully
replace their duties. So, again, chose your replacement Attorney(s) carefully!

Your replacement Attorneys must also be at least 18 years old and have mental capacity to
make decisions.

Think carefully about your replacement Attorneys. Whilst a substitution may never
happen, you need to be sure that if it does, the replacements will act in your
best interest and be able to work with your other remaining Attorney(s).

It is quite common to appoint children as replacement Attorneys.

Note: This can also create family friction, if some adult children who believe they
have been overlooked by their parents are left out. So think this through carefully to avoid
any deep upset amongst siblings.

Summary:

If you haven’t yet made a Lasting Power of Attorney or a Will, then we would urge
you to do so, sooner rather than later. Retain control over your affairs at all times.

The cost is relatively inexpensive, and you can set up your LPA online:

https://www.gov.uk/government/collections/lasting-power-of-attorney-forms

If you have made a Lasting Power of Attorney, we would recommend that you do not
sit on it. Get it registered with the Office of the Public Guardian promptly. Delays in
registration, or mistakes in completing the LPA form, may invalidate the LPA if your
relative loses mental capacity in the meantime.

Help is available:

If you want professional help making your Power of Attorney visit our one-to-one
page https://caretobedifferent.co.uk/nhs-continuing-healthcare-solicitor/

For further reading see our blogs:

I have a will, so why do I need a Lasting Power of Attorney?
Essential: Have You Got A Power Of Attorney