Don’t leave it too late to arrange lasting power of attorney
Specialist private client lawyers are encouraging people to consider making Lasting Power of Attorneys (“LPAs”) before it is too late.
An LPA is a legal document that allows the donor (the person giving away the power) to appoint a person or people, known as attorneys, to act during the donor’s lifetime to help make decisions or, in the case of a lack of mental capacity.
There are two different types of LPA:
1) A property and finance LPA – this allows the attorneys to manage property, bank accounts, savings, and investments.
2) A health and care LPA – this allows the attorneys to decide on medical care, living arrangements and even diet, dress, or daily routine. The health and care LPA can also encompass life sustaining treatment decisions which can include a serious operation such as a heart bypass or organ transplant, cancer treatment and whether artificial hydration and nutrition is to be withdrawn.
Both types of LPA must be registered with the Office of the Public (OPG) before they can be used.
It is important to note that even with a registered LPA or LPAs that the donor remains in complete control of their affairs unless or until they lack mental capacity.
With the OPG currently taking up to 16 weeks to process LPA registrations Ben Tasker, associate in the private capital team, is advising clients to put plans in place way before they think they might need them to ensure their affairs are looked after during their lifetime if they lack mental capacity or require additional help.
Ben said: “You do not want to leave it too late to prepare LPAs especially as the OPG is currently taking around 16 weeks to register them and LPAs cannot be used before registration. I recommend to all my clients to register their LPAs upon creation so that they can be used straight away.
Whilst it is possible to leave the registration of an LPA to a later stage, it is not advisable for most people to delay registration because of the current delays at the OPG. In the case of a sudden lack of mental capacity, the attorney(s) would need to register the LPA(s) and a 16-week wait would ensue. During this time the attorney(s) would not be able to access or manage the donor’s finances and for most this would have detrimental consequences. Imagine the number of bills you get in a 16-week period but being unable to pay those bills because you lack mental capacity. In these circumstances, your loved ones will also be unable to pay those bills in their role as attorney until the LPA is registered and lodged with the bank.”
I recommend that everyone over the age of 18 should set up both types of LPA regardless of health and circumstances because we do not have a crystal ball and we do not know what is around the corner. Often my clients think about a gradual deterioration in health rather than a rapid decline or accident resulting in a sudden loss of capacity.
If you do not create Lasting Powers of Attorney whilst you have capacity, a loved one can apply to the Court of Protection to determine who can act on your behalf and appoint them as your ‘deputy’. This process is costly, lengthy, does not always give the desired result because the Court will ultimately decide who will act on your behalf.”
Ben continued: “None of us want to have to make these decisions before we are faced with them, but it is so much worse for the family if we do not talk and plan in advance.”
Ben specialises in Wills, trusts, estate planning, powers of attorney and advance decisions. He has extensive experience in advising a multitude of clients and their families particularly in relation to wealth preservation.
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