Lasting Powers of Attorney – do you really need one?
Many people will have heard of Lasting Powers of Attorney but for some reason, decide they don’t need to have them. They may have made a Will but how many of us think about what will happen to us if we become unable to deal with our own affairs? A Will only takes effect on death but Lasting Powers of Attorney help you whilst you are still here and when you most need help!
A common misconception of Lasting Powers of Attorney is that they are only needed by the elderly or those with dementia. This is not true – they are invaluable in all sorts of circumstances that can affect adults – such as a stroke, heart attack, care accident or even just physical incapacity.
The types of LPA
There are two types of Lasting Power of Attorney – one covering property and financial decisions and the other covering health and welfare decisions.
The property and financial type can be used with the consent of the mentally capable donor (the person making it) if say, they are physically incapacitated or simply need that extra support. If the donor goes on to lose their mental capacity, the authority to act on their behalf continues and ensures continued access to the donor’s bank accounts, the ability to pay their bills, deal with their investments, sell and purchase property etc.
As you would expect the health and welfare Lasting Power of Attorney can only be used if the donor becomes mentally incapable but it means that they can choose now who they would wish to “stand in their shoes in their hour of need” and so allows an element of control for their future. As you would expect this document authorises your chosen person(s) to make decisions in respect of your care and welfare including decisions about life sustaining treatment.
Why it's necessary
You may hear the term “next of kin” used but this term has no legal effect in this situation. You should not rely on being allowed to make decisions for someone just because you are their “next of kin”. The only way to have that authority is to make a Lasting Power of Attorney. These documents can only be made whilst the donor has the mental capacity to do so. If that opportunity is missed the only option for financial decisions is to apply to the Court of Protection which is costly and time consuming. Most health and welfare decisions would be made on a best interest basis which may not be the result you would have hoped for.
If you stick with one resolution this year, let it be that you make your Lasting Powers of Attorney.