Do I really need a Lasting Power of Attorney?

Thinking about what would happen if you were to lose mental capacity is scary, which is why we avoid doing so! Too often, people wait for a life crisis to make them face up to this real possibility, but for some, by then, it may well be too late.

As a nation, we are living longer but not always in perfect health. Research by the Alzheimer’s Society estimates that by 2040 there will be around 1.6 million Britons living with dementia but a stroke, accident, or other serious illness can all too quickly take away our ability to administer our personal affairs either on a temporary or permanent basis.

Any one of these possibilities would be more than enough for you and your loved ones to contend with. How much worse will it be if, on top of that, you fail to prepare by empowering someone to step in and be able to make decisions on your behalf should the need arise?

So what is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more trusted people, or attorneys, to act on your behalf if you cannot make decisions yourself. Once appointed, Attorneys are legally empowered to represent you when you are unable to deal with matters yourself, making decisions on your behalf that they consider to be in your best interests.

What if I don’t have a Power of Attorney and lose mental capacity?

If you don’t make the necessary arrangements and become mentally incapable, you leave no one with the legal power to act for you. Don’t fall into the trap of thinking that your spouse or “next of kin” will be able to fill this void. Unless you have specifically granted authority under a Lasting Power of Attorney, they cannot help.

Without a Lasting Power of Attorney, those who wish to act for you will first need to apply to the Court of Protection for a Deputyship Order. This can take many months to obtain and is considerably more expensive and intrusive than making an LPA.

The consequences of this will depend on the circumstances.  With no LPA in place, your finances will be in a state of limbo until a Deputy is appointed, as nobody will have authority to access your bank account and investments, manage property or pay your bills, medical expenses and care fees until such time as an order is issued. Even if you have a joint bank account, the Bank has the power to restrict access to funds until a Deputy is appointed.

Decisions in relation to your medical and welfare needs may be taken on a “best interests” basis by your Doctors or Social Workers, and although family members may be consulted, they would not have the legal authority to act on your behalf in the event of a disagreement.

What types of Lasting Powers of Attorney are there?

There are two types of Lasting Power of Attorney, each dealing with specific areas of your life. Whilst you may choose to have one only, in order to give all-round authority, both versions are required:

  1. Property & Financial Affairs

A Property and Financial Affairs Lasting Power of Attorney deals with issues involving money, including the sale or management of property and investments, accessing your bank accounts and arranging for the payments of your debts and liabilities. Depending on your wishes, these documents can be used before the loss of mental capacity, and this can be a very convenient way to delegate authority to your family or a trusted friend. If you operate a business, you may also wish to consider having two powers, one dealing with your business affairs and another for personal matters.

  1. Health & Welfare

At a time when you cannot make such decisions for yourself, a Lasting Power of Attorney for Health and Welfare will empower your Attorneys to act for you. This may involve discussions with your doctors about medical treatment and dealings with Social Services concerning your welfare needs and any care package you may require. A power of attorney can also include specific authority to consent to or refuse treatment of a life-sustaining nature.  

There are certain provisions and requirements common to both types of LPA. Each document requires someone known as a “certificate provider” to confirm that they have discussed the contents of the LPA with you and that you understand what it does. Before either document can be used, it must be registered with the Office of the Public Guardian to check that it has been completed correctly and is valid.

Although Lasting Powers of Attorney provide a simple solution to the issue of planning for the loss of mental capacity, they are very powerful documents and need to be carefully considered. Who should you appoint as your Attorneys? How should they act? What powers do you want them to have? When should they be exercised?

Your solicitor can advise you on what is best for your personal circumstances and guide you through the whole process from creation to registration but don’t delay as you may need a Lasting Power of Attorney to be in place sooner than you expect.

For further information about Lasting Powers of Attorney, please contact us at 01636 703333 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it.