Losing mental capacity and your ability to make important decisions for yourself may not be pleasant to think about.
It is though important that everyone plans for the unexpected and having a lasting power of attorney (LPA) is one of the ways you can protect yourself, your family and your assets (including your house and investments) should anything happen to you.
Here we tackle some of the misconceptions surrounding LPA’s.
I’m too young to need an LPA
Everybody should have an LPA. While it may be true that elderly people have a greater risk of losing their mental capacity through illnesses such as dementia, younger people should not overlook the importance of LPA’s and the impact that not having one could have on themselves and their loved ones.
It is important that you put an LPA in place while you have full capacity to do so. If you were to sustain an injury or develop an illness that leaves you incapacitated and you do not have an LPA in place your loved ones will in all liklihood be left with no alternative other than to make a full blown application to the Courts to manage your affairs, both financial and healthcare. Such a court application is always time consuming and often very expensive.
The existence of a pre-signed LPA will avoid court applications, delay and expense.
Unfortunately events that can affect mental capacity can happen at any stage of life and so it is something that you should think about putting in place regardless of your age.
I will immediately lose the power to make decisions for myself when I sign my LPA
Making an LPA does not mean that you will lose the ability to make decisions for yourself as soon as it has been drawn up. Whilst you have mental capacity you are still fully in charge. The LPA can only be used with your consent and when you no longer have capacity it can only be used when in your best interests to do so.
If I make an LPA my attorney will make all of my decisions for me if I lose mental capacity
First things first. You must of course have full mental capacity at the time you make LPA’s. When drawing up your LPA you should think carefully about which decisions you would like your chosen attorneys to make on your behalf if you lose capacity.A health and welfare LPA can allow your attorney to make decisions such as where you should live, what healthcare treatment you should receive and even what you should wear and eat. A property and finance LPA can allow them to make decisions regarding selling your property, dealing with benefits, bank accounts and investments, and allow them to pay your bills on your behalf.You can specify in your LPA whether you would like your attorney to deal with all aspects of the above or only certain things. You can also specify conditions if necessary.
I don’t need an LPA because my spouse will automatically be able to deal with my affairs if I lose mental capacity
A spouse, even if married for many years, has no automatic right to deal with your affairs whether that be the matrimonial home or bank accounts or investments in your name. Even if you and your spouse hold joint bank accounts they will not necessarily be automatically able to take control of your affairs if you lose capacity. In accordance with guidance from the British Bankers’ Association many banks freeze withdrawals from joint bank accounts if one of the account holders loses mental capacity. This is because the account holder without mental capacity is no longer able to agree to the terms of the agreement that both parties can withdraw from the account. Having a property and finance LPA in place would allow your spouse to continue using the joint account on behalf of both of you. If you do not have an LPA it could take several months for your spouse to regain access to the account after a lengthy legal process through the Court of Protection.
If I am unable to make a decision about my own healthcare the doctors will follow the wishes of my loved ones anyway
It is a common misconception that if you were unable to make decisions about your own health and welfare that your next of kin would automatically be able to make these decisions on your behalf, and therefore you do not need to appoint an attorney.
This is not true, your next of kin do not have an automatic right to act on your behalf. A lasting power of attorney is the only way you can say who you trust implicitly to make these decisions for you, including decisions regarding life sustaining care. If you were to lose capacity without having an LPA in place your loved ones would have to go through the courts to gain permission to make these decisions and this can be a long, complex and difficult process at what is already an upsetting time for them.
It is very expensive to have LPA’s prepared
It is true that preparing LPA’s does come with some costs and accompanying registration fees. These costs would though be substantially smaller than the costs involved if a full court application is required
If you would like more information about how a lasting power of attorney would be beneficial to you and your loved ones call Rands Solicitors specialist LPA department on 01724 786272 or pop into our office for a chat.
Our solicitors are also able to visit you at home or hospital if you require them to do so.
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