Why should you make a Lasting Power of Attorney and what is the alternative?

A Lasting Power of Attorney is a legal document which allows you (the donor) to appoint one or more persons (the attorney(s)) to make decisions and to act on your behalf.

There are two types of Lasting Power of Attorney.

• The Property and Financial Affairs LPA allows your chosen Attorney(s) to access your accounts, pay your bills, liaise with your insurers and make financial arrangements for you.
• The Health and Welfare Lasting Power of Attorney authorises your Attorney(s) to make personal decisions such as medical treatment and care arrangements.

By registering a Lasting Power of Attorney, you ensure that your interests are protected and managed by someone you trust in case you are one day unable to manage them yourself through illness, frailty or otherwise.

It can be difficult to think that you may one day lose the ability to manage your affairs and, of course, this may never be the case. But it is reassuring to know that your affairs would be managed by those that you have chosen and appointed. A Lasting Power of Attorney also gives you the opportunity to provide guidance or instructions on how you want your affairs managed if you were to become incapable of managing them yourself. It is far better for someone you love and trust to make decisions in relation to your health and medical needs, as these decisions will otherwise be left in the hands of professionals.

It is usual to assume that your family or friends can make decisions on your behalf in case of a life changing illness or accident, but this is not the case if they do not have any legal authority to do so. Families are often shocked that without a Lasting Power of Attorney, there is no automatic mechanism in place for them to take charge at a time in which they need to do so.

If someone needs to manage your affairs in the event that you are no longer able to do so and you do not have a Lasting Power of Attorney in place, the only course of action open to that person would be to make an application to the Court of Protection for a Deputy to be appointed. This is a lengthy and complex process and the costs involved are substantially higher than those for setting up a Lasting Power of Attorney. The decision is also in the hands of the court, as the court has complete discretion to choose who to appoint to act as your Deputy. The delay involved in making a Deputyship application can result in there being a period in which nobody has the authority to act on your behalf. This delay often occurs when the authority to make decisions is most needed. This can put additional financial and emotional pressure on those close to you. The application can also only be made once you are assessed as having lost capacity, which can be a difficult hurdle to overcome. A deputy must prepare various reports, submit annual audits and must apply to the court for permission to take various steps. Each application to the court takes time and incurs further fees.

It is always better to think ahead and to plan for the future whilst you are well and able to do so. The key benefit of setting up Lasting Powers of Attorney is peace of mind for both you and your loved ones. It gives you the comfort of knowing that you can continue to make decisions for yourself, but that if one day you are unable to do so then the people you have chosen and trust will be in control and will be able to step in and assist straight away. The key is to act early, as once capacity is lost it is too late to appoint an Attorney and the alternative is a costly, lengthy and often stressful process.

At Fitzhugh Gates, we can assist you in every stage of the preparation and registration of Lasting Powers of Attorney. We can also provide advice in regards to any preferences or instructions you would like to give to your Attorneys. Please contact our Private Client Team for further information.