I have a Will, so why do I need a Lasting Power of Attorney?

It is important to consider the potential consequence of not having a Lasting Power of Attorney (LPA) in place. Many assume that their spouse or in the alternative that their adult children will automatically have the authority to make decisions on their behalf. However, this is not the case, and without an LPA, those close to you will not have the legal authority to handle your financial affairs, and to an extent, may not for your health and wellbeing decisions.

Setting up an appropriate LPA is important to make sure that you have a trusted individual who is in place to manage your affairs when you are no longer able to do so yourself. It is vital to think about these scenarios in advance (before they’ve happened) and plan for them by setting up an LPA.

 An LPA is a legal document which should ensure that your wishes are respected and carried out, regardless of your mental capacity to make sound decisions potentially in the future.

Despite the fact that 95% of adults are aware of LPAs, a recent study by the Scottish Widows last year revealed that only one in three actually know how to use an LPA effectively. This leaves a considerable proportion of people at risk of having to take costly and time-consuming Court of Protection action if their spouse were to lose mental capacity.

You can set up an LPA at any point in time provided you are over the age of 18 and have the mental capacity to understand the document. Within your LPA you can delegate decision making authority to one or more trusted individuals. These chosen individuals will have the ability to manage your property and finances, alongside any health and welfare matters.

There are many benefits to having an LPA in place, which may include assistance in temporary situations such as hospitalisation when you may need help with daily tasks like paying bills. It can also be beneficial in long term situations where you want to plan for the unexpected, or in situations where you have been diagnosed with an illness, such as dementia, which may impact your decision-making abilities in the future.

According to the Scottish Widows research, although almost 75% of Britain’s deem an LPA necessary, only 37% have put one in place. In contrast, around 75% of people in marriages and other relationships have discussed Wills and trusts with their spouse.

It is appropriate to say that the government online available forms to make and register Lasting Powers of Attorney work quite well. Why then, should you consider using a professional to do something that you could do yourself?

Drafting and registering an LPA is more than just form filling. It is the case that an appropriate solicitor or other suitably qualified legal practitioner will know their way around the forms. They will be able to advise you as far as what mandatory restrictions and or discretionary preferences are likely to work and are likely to not lead to a delay or rejections in the registration of the LPA by the Office of the Public Guardian.

The legal advisor’s role is to question and ascertain whether the proposal is or is not in your best interests. That is particularly the case if the legal professional is acting as the certificate provider as is frequently the case. The legal professional will need to ascertain for themselves that you understand the nature and purpose of the document, and that you are not acting under duress or undue influence. Legal professionals will be familiar with instances of duress or of undue influence, and lack of capacity, which allows them to understand what to look out for, and when to ask further questions. Simply put, a legal professional has the experience necessary to ensure that what is put in place is appropriate and will work for you, whilst avoiding inappropriate documentation being put in place.

This is why consulting a solicitor or legal professional for the drafting of an LPA is worthwhile. If you are looking for advice on writing an LPA or any other form of future planning, you can contact our Private Client team at info@bussmurton.co.uk or on 01892 510 222.