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Planning ahead – why you need a Lasting Power of Attorney

Luke Whitmore - Law on the Web

  1. 09 September 2015
  2. Wills and Probate
  3. 0 comments
Ungrateful kids

While many people know that making a Will is important, fewer consider the idea of creating a Lasting Power of Attorney, or even know what one is. However, these documents can also be extremely important, and individuals of any age should consider having one in place.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a document which allows people you trust (your ‘attorneys’) to make important decisions for you if you should end up in a situation where you cannot make those decisions for yourself.

For example, if you had an accident and ended up in a coma or suffered from an illness which meant you were not able to make decisions for yourself, an LPA would ensure that decisions affecting you were made by people you would trust to keep your best interests at heart.

There are two types of LPA. One type deals with property and financial affairs, and the other with health and welfare. You can make either one, or both. A property and financial affairs LPA nominates someone to do things like looking after your bank account or paying bills for you. With this type, the attorney can use the LPA even while you still have capacity – it comes into effect as soon as it is registered, unless you specify otherwise in the LPA.>

A health and welfare LPA allows your attorney to make decisions about medical treatment you might receive, as well as day-to-day care concerns if you are unable to look after yourself. The attorney cannot make decisions about life-sustaining treatment unless you specifically permit this in the LPA. This type of LPA can only be used when you lose capacity (or the attorney reasonably believes that you have lost capacity).

Your attorney can be anyone over the age of 18 who has the capacity to make their own decisions. You must also be over 18 and have capacity at the time of making the LPA. The LPA does not take effect until it has been registered with the Office of Public Guardian, and an unregistered LPA does not give the attorney any legal powers to make a decision for you. You can choose one or more attorneys, and you can decide whether they all need to agree in order for a decision to be made or if they can make decisions for you independently.

Why make a Lasting Power of Attorney?

As with Wills, many people may consider the idea of an LPA to be a grim prospect, as you will have to give consideration to a time when you can no longer make choices for yourself. However, there is really no good reason not to have one in place.

By putting a Lasting Power of Attorney in place, you can ensure that decisions about your life are made by the people you would want to be making them. Even if you believe it to be a foregone conclusion that certain people will end up looking after you if you should lose mental capacity, they will need to apply to the Court of Protection for permission to make decisions on your behalf if you have not registered an LPA. This can be a lengthy and expensive process that can easily be avoided with a little foresight.

Other ways to prepare for the future

A Lasting Power of Attorney is not the only way to plan ahead. If there are certain medical treatments that you would rather not receive, you can put together an Advance Decision to Refuse Treatment (often shortened to just ‘Advance Decision’), so if you are unable to make your own decisions, doctors know the procedures and treatments you do not want to undergo.

You can also refuse treatment in certain circumstances – for example, if you are suffering from a condition where you are no longer able to recognise your loved ones or live independently, you might not want to be subjected to the same life-sustaining treatments you’d wish to receive if there were a chance of recovery. However, it is important to note that there are statutory requirements that need to be complied with for your Advance Decision to apply in these circumstances.

You also cannot use an Advance Decision to refuse actions that are needed to keep you comfortable. These actions include the provision of warmth and shelter, hygiene measures to maintain body cleanliness and the offer of food and water by mouth.

You should take care if you are planning to create an Advance Decision and also set up an LPA, because having both in place can lead to confusing situations regarding which document should be abided by. Generally the most recent document will be seen as taking precedence, but you should take legal advice in this situation to ensure that your wishes are not disregarded.

The gov.uk website has everything you need to get started with a Lasting Power of Attorney.




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