LPAs The Essentials and Need for Both Types
It is estimated that around 60% of the UK adult population may not have made a Will, although there are undoubtedly more than that percentage who have not made their Lasting Power of Attorney (LPA) documents. Many of these who have not may feel that should they be unable to make decisions for themselves then their “next of kin” can do so on their behalf, but in reality a person’s immediate family do not have that legal authority.
However, there are some who would like to plan for a time when they do need help making decisions. Dementia e.g. Alzheimer’s disease, a stroke or severe accident can leave anyone dependent upon other people who could then have limited scope to help. Therefore, it is important to consider giving legal decisionmaking power with LPAs to make crucial choices in our lives, including if in hospital or abroad for a time and can’t easily carry out decisions for ourselves.
So, who may need and should make LPAs? The short answer is anyone potentially, as LPAs are not just for the elderly as some may think. You don’t need to be getting on in life for LPAs to be useful and as it may turn out to be essential. It should be recognised that LPAs are just as important, if not more important to make, than Wills As we should all be aware as estate planners there are two types of LPA for different reasons and purposes.
The client often feels that it is only the LPA for Property and Financial affairs that is needed. However, the LPA for Health and Welfare decisions is crucial too, as someone may need medical treatment maybe even care and not be able to make their own decisions, so those type of decisions will need to be made for them e.g. medication, and operation, care at home or even moving into residential care.
Many family members of someone in that situation would want their relative to be treated in the right way and so be able to do that for them. Family members may have an input, but may disagree with the likes of doctors, hospitals, social services or a care home, although under an LPA by being appointed as an attorney they would have the legal right to make best interest decisions for that the person.
So why don’t people make LPAs? Many do not even know about what LPAs are, what they are for and what they can do, and even if they are aware of these things do not see the need. This is why as estate planners, and if financial advisers too, we can broach the subject with people, educate them, and advise them to consider making their LPAs and generally spread the word about the importance of doing so.
For elderly clients, it is often their own children that see the need for their parents to have their LPAs in place. Clients should be encouraged to sit down with family members (or friends) to discuss making LPAs and to involve those who have the right skills, time and willingness to be their attorney(s).
Another reason why people may not make LPAs is even fear that they would give up control to others over their affairs, particularly allowing access to their savings. However, people do retain their own control when making LPAs while they continue to have capacity, but also decide how their attorney(s) can act if needed to. Let us not forget that anyone should choose their attorneys as people that they trust implicitly.
They could choose to give consent for attorneys to act for the LPA for property and finances once it is registered, and if that consent is given the attorney(s) can only act on instructions. For the LPA for health and welfare, that only becomes effective on loss of capacity. For both types of LPA an attorney(s) always must act in the person’s best interests and must involve the person as much as possible in decision making.
What happens if someone hasn’t made their LPAs and then loses capacity? That is when someone on that person’s behalf would have to apply to the Court of Protection to gain legal authority as a Deputy which if granted which may be limited, plus take a lot longer and cost a lot more than making LPAs in the first place.
For any estate planning and probate enquiries in Bexhill, Battle, Hastings, Rye and all East Sussex please get in touch.
This message was added on Monday 13th January 2025
