Assessing risk has never been a strength of humans. To borrow the lyrics from the classic ‘Sunscreen’ song - Everybody’s Free (To Wear Sunscreen) by Quindon Tarver:
The real troubles in your life are apt to be things
That never crossed your worried mind
The kind that blindsides you at 4 p.m. on some idle Tuesday
Whilst it is good advice not to worry unnecessarily about our health, after all, we are all living longer lives than ever, it is also true that our increasing age means that the risk of becoming mentally incapacitated due to dementia, stroke or other life-changing event is higher than ever. This is why it is important to have a framework in place for managing your affairs if such an eventuality was to befall you.
A Lasting Power of Attorney (LPA) is a legal tool that allows you to appoint someone you know and trust, referred to as an ‘attorney,' to manage your financial, health and welfare affairs if you become unable to do so because you lack the necessary mental capacity.
Two Types of LPAs
There are two types of LPAs - a financial & property LPA and a health & welfare LPA.
Under a financial and property LPA, you can assign powers to someone you trust to manage things such as:
- paying your bills
- selling or renting out your home
- collecting and managing benefits and pensions
- take care of your investment portfolio
A health & welfare LPA provides the ability for your attorney to look after personal care and health choices. They can decide for example:
- where you will live and whether you should move into assisted care
- collecting and administering your medication
- deciding what you should eat, wear and your recreational activities
- accept or refuse life-sustaining treatment on your behalf
You can elect to have one or both types of LPA, and the extent of the attorney’s powers is entirely up to you. You may also select different attorneys for each type of LPA.
Who can be my attorney?
One of the most comforting things about having an LPA in place is that you, as the donor, have had the chance to select a person you know and trust to look after your affairs and act in your best interests. If an LPA is not in place and you become mentally incapacitated, your relatives or friends may have to apply to the Court of Protection to gain the power of Deputyship to manage you financial and personal affairs.
By having an LPA drawn up well before it is required, you alone can decide who will make important decisions on your behalf.
The importance of obtaining expert legal advice
Instructing a solicitor to draw up an LPA may require a modest financial investment, but it can save a lot of heartache in the long run. Unfortunately, not all family members may agree with your choice of attorney and may seek to challenge your decision. We often see challenges to LPAs erupt in step-families; using a solicitor to advise on and draw up your document can mitigate the risk of your wishes being contested.
A solicitor also has a duty to act in the best interests of a donor. To this end, they will advise you on how to safeguard against the powers granted under an LPA being exploited or misused.
An LPA must include a certificate, issued by an independent third party, known as a Certificate Provider.
Our private client solicitors can act as your Certificate Provider on an LPA, certifying that as your legal representative we believe the following:
- the donor understands they have drawn up an LPA and the powers they are transferring to their chosen attorney
- the LPA has been created under the donors own free will and no undue influence or duress has been exerted by anyone close to them
- no other factors should prevent the LPA taking effect
Without a proper Certificate Provider the LPA will not be valid. This is an important safeguard, designed to protect the interests of the donor.
Interestingly, the cost of registering an LPAs has reduced recently from £110 or £82, making it more cost-effective than ever to organise your affairs.
Like a Will, an LPA is a document we know we ought to have drawn up, but we often put it off until tomorrow - a day which never comes. However, not having an LPA (or a Will for that matter), in place can cause enormous stress and hardship on your loved ones who may feel unprepared to make decisions about your life for you. By drawing up an LPA, both you and the person you select as your attorney will have an opportunity to talk about your future wishes and how you want your affairs to be managed.
As a long-established South Wales law firm, Devonalds Solicitors have years of experience in drafting LPAs. We are renowned for our expertise in private client law and hold a Quality Wills and Inheritance accreditation from the Law Society of England and Wales. We are committed to being clear on costs and always have our clients’ best interests at heart. If you wish to instruct us to draft your LPAs, please get in touch with our friendly experts today.