Everything you need to know about Lasting Powers of Attorney: FAQ

Planning ahead ensures your decisions and wishes are respected, even if you can’t make them yourself. A Lasting Power of Attorney (LPA) offers peace of mind for you and your family by providing legal clarity and avoiding unnecessary complications. For many people looking to get their affairs in order, creating Lasting Powers of Attorneys is just as important as creating a Will.

Let’s explore why setting up an LPA is a positive, proactive and essential step in your future planning and how it works.

• What is a Lasting Power of Attorney (LPA)?

• What’s the difference between a Will and an LPA?

• What are the different types of LPAs?

• Who can I appoint as my Attorney?

• Why would I need a solicitor to prepare an LPA?

• What would happen if I lost capacity and don’t have an LPA?

• When should I make my LPA?

• Will I lose control of my own affairs by making LPAs?

• I have an Enduring Powers of Attorney (EPA) already, what should I do?

• How we can help

What is a Lasting Power of Attorney (LPA)?

An LPA is a legal document that lets you (referred to as the “Donor”) appoint trusted individuals (referred to as your “Attorneys”) to manage your affairs if you lose the capacity to do so.

It is a common misconception that your family automatically gain the right to make decisions for you if needed – this isn’t the case.  Without an LPA, no one has the legal authority to assist you. This can cause stress, delays, and additional costs for your loved ones.

LPAs future-proof your independence and safeguard your family. None of us know what the future holds and, as we age, we may find we need more assistance with our affairs – whether that’s due to degenerative illnesses such as dementia, loss of mental capacity or as a result of an accident. We appreciate these aren’t pleasant things to think about, but it’s sensible to consider what may happen in these events and how you and your family may be impacted.

Think of an LPA as an insurance policy. You hope you’ll never need it, but if something happens, having one in place provides security and peace of mind for you and your loved ones.

What’s the difference between a Will and an LPA?

A Will and an LPA serve distinct and different purposes. A Will outlines your wishes for how your estate should be distributed after your death, whereas an LPA is designed to manage your affairs during your lifetime, if you lose the capacity to do so. While both are essential, an LPA ensures your financial and health decisions are made according to your preferences while you are still alive. It’s common to set up both documents simultaneously to create a comprehensive plan.

What are the different types of LPAs?

There are two types of LPAs tailored to different aspects of your life:

1. Property and Financial Affairs LPA:

• Manage bank accounts
• Pay bills
• Buy or sell property
• Claim pensions and benefits

2. Health and Welfare LPA:

• Make decisions about your medical treatment
• Choose where you live
• Decide on daily care, such as diet and routine

An LPA is active during your lifetime. After you pass, your Will governs your affairs.

Who can I appoint as my Attorney?

When choosing an Attorney, you should select someone you trust implicitly. This could be a family member, a close friend, or even a professional such as a solicitor. It’s crucial to choose individuals who are reliable, financially responsible, and trusted to act in your best interests. You can appoint more than one Attorney and specify whether they must act jointly or can make decisions independently. We strongly advise that you discuss your decision with them to ensure they’re comfortable with the responsibility.

Why would I need a solicitor to prepare an LPA?

While you can set up an LPA on your own, working with a solicitor offers significant advantages:

• Avoiding mistakes: Errors in the LPA form or registration process can cause delays or even invalidate the document. A solicitor ensures everything is completed correctly.
• Tailored advice: A solicitor can provide expert advice on complex assets or family situations, such as blended families or potential conflicts among Attorneys.
• Legal expertise: Solicitors ensure the LPA is properly drafted to reflect your wishes, including any specific instructions, preferences or clauses.
• Peace of mind: With professional support, you can trust that your LPA meets legal requirements and will function as intended if ever needed.

In situations where personal circumstances are complex or you have significant financial assets, consulting a solicitor is invaluable for protecting your interests and ensuring your LPA aligns with your broader estate plan.

What would happen if I lost capacity and don’t have an LPA?

Without an LPA, your family must apply for a Deputyship Order through the Court of Protection. This is where the Court appoints someone it considers suitable to manage your affairs as your “Deputy”. This process:

• Is costly and time-intensive (up to 12 months)
• Gives decision-making authority to the Court, which might appoint someone you wouldn’t choose yourself.
• Requires Deputies to adhere to stricter controls, including annual reports, making their role more burdensome, stressful and emotionally difficult.

By contrast, an LPA allows you to plan ahead and take control, choose your trusted decision-makers, and avoid these complexities.

When should I make my LPA?

Creating an LPA is important for any age. The presumption that LPAs are only useful or relevant for the older generation is inaccurate. Accidents and other incidents which may result is a loss of capacity can happen at any stage of our lives.

Moreover, preparing an LPA requires mental capacity, so acting early is essential. The registration process takes 8 to 10 weeks (or longer during busy periods). Leaving the preparation of LPAs to a future time when your health has deteriorated will likely cause additional stress for you and your family, make the process more complicated and increase the cost.

Preparing your LPA now avoids delays and extra stress during critical moments when time and clarity are of the essence.

Will I lose control of my own affairs by making LPAs?

Absolutely not, you remain in control. Your appointed Attorneys must act under your instruction while you have capacity. Should you ever lose capacity, they’re legally required to act in your best interests. In your LPA, you can specify preferences, allowing you to have some continuing influence over important decisions; for example, you can specify that you desire to stay in your own home for as long as possible.

I have an Enduring Powers of Attorney (EPA) already, what should I do?

In 2007, Enduring Powers of Attorney (EPAs) were replaced by Lasting Powers of Attorney (LPAs). New EPAs can no longer be created, however, if you have an EPA already prepared, it will still be valid but only covers financial matters and not your health and welfare. EPAs also require court registration when capacity is lost, causing potential delays. These added complications don’t exist with LPAs, which are registered before they are used.

You may wish to make an LPA to deal with your health and welfare to complement the financial EPA you already have in place. You may also wish to consider replacing your existing EPA with an LPA to ensure more comprehensive coverage and avoid procedural hold-ups for your Attorneys.

How we can help

At Owen White Catlin, we understand how daunting planning for the future can feel. Our experienced team will make the process simple and stress-free. We’ll ensure your LPA reflects your wishes while giving you peace of mind that your affairs will be in trusted hands.

Take control of your future today. Contact Owen White Catlin for expert guidance on setting up your Lasting Power of Attorney.