Lasting Power of Attorney (LPA) – 5 things you might not know

Having a Lasting Power of Attorney (LPA) may not be on your list of priorities if you are fit and healthy, even if you are not necessarily what could be described as a spring chicken!  However, leaving it until you actually need it could mean you leave it until it’s too late.

In the article below, Lucy Wilton, Solicitor at Penderlaw, clarifies a few common misconceptions about these important documents.

  1. They are only for the elderly aren’t they?
    Unfortunately this is not true.  Accidents, mental or physical illness can happen at any age and can present an uncertain future, unless you have formalised who will make decisions about your property and finances and health and welfare on your behalf if you were to lose capacity.  It is especially important to have an Lasting Power of Attorney if you are a business owner, this would be a separate document to a standard Lasting Power of Attorney focusing on who would be best placed to ensure the continuity of your business were you to become incapacitated.  The idea is to make the documents when you are well and have capacity to do so. You cannot make Lasting Power of Attorneys once you have lost capacity.
  2. I have a Will so I don’t need one do I?
    The key difference between a Will and an LPA is that a Will only comes into effect when you die, and an LPA is only valid whilst you are alive.   Just because someone is a beneficiary or an Executor in your Will, this does not mean that they are able to make decisions on your behalf during your lifetime. The power granted to an attorney ceases upon the death of the donor (the person who made the LPA).
  3. My next of kin will get to make any decisions that I can’t if necessary won’t they?
    In some circumstances your next of kin may be asked for their thoughts on what your wishes may have been about your care, but they have no specific legal right to make decisions on your behalf. Even if you are married, banks and financial institutions will require an LPA to give you authority to deal with your spouse’s financial affairs on their behalf and If you do not have an LPA in place enabling decisions to be made on your behalf,  then the Court of Protection may need to become involved which can be a lengthy and expensive process.
  4. I have an EPA so don’t need an LPA do I?
    EPAs were replaced by LPAs in 2007 but should still be valid. However, they don’t cover health and welfare decisions.  They must be registered before they can be used and can only be registered when the person who sets them up loses capacity or wants them to be used.  This registration can take several months, whereas an LPA can be registered as soon as it is made meaning that it is ready to use when the time comes.
  5. I’ll be able to get one when I need one won’t I?
    A person must be deemed to have mental capacity in order to set up an LPA.  If a person’s capacity is in doubt, a medial assessment will be required before documents can be drawn up. Sadly, it is not uncommon for the decision to be put off until it is too late.

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If you’d like to discuss drawing up an LPA our friendly and experienced team would be delighted to hear from you.  You can get in touch by emailing or call us on 01872 241408