Lasting Power of Attorney

None of us want to think about losing our capacity. The sad reality is that loss of capacity can happen to anyone at any time, not just through old age, but through accident and/or illness – often things that are completely out of our control.

We advise all clients to plan now to protect themselves, their family and their assets for the future. It is the norm to have insurance to protect our income or mortgage, a pension and ISA to look after ourselves in retirement, but unfortunately an LPA all too often gets missed off the to-do list!

Why should I consider planning for incapacity?
If you became physically or mentally incapable of dealing with your affairs and making your own decisions, no-one has the automatic right to deal with those matters on your behalf - not even people who we commonly think of as next of kin have any rights over our financial affairs.

This can pose real problems at a time when the smooth running of financial and welfare matters is essential for an incapacitated person’s general wellbeing.

Can I do something about this now?
Yes, and this is indeed the key to successful future planning.

We recommend that whilst you are fit and able to do so, you make a legal document called a ‘Lasting Power of Attorney’ (LPA). In this you appoint one or more persons to assist, support and - if necessary - take over dealing with your affairs and decisions should you lose your capacity to look after things by yourself.

There are two types of LPA; one that relates to all your property and financial matters, and one that covers your personal health and welfare decisions.

If you have a query concerning LPAs, please do not hesitate to contact us for Free First Advice. We also offer a Free Will & LPA Review service to ensure any documents you already have in place are legally accurate.

Lasting Power of Attorney FAQs

  • What happens if I do not have a LPA and lose capacity?

    A donor can only create a LPA when they have capacity.  If the donor lacks capacity then they have to apply to the Court of Protection to look after the property and affairs of the person who has lost capacity (this is called a deputyship). As the donor is not giving his authority to this application (as he lacks capacity), then the process is much more complicated, long winded and expensive.

  • What happens if I do not have a LPA and lose capacity?

    A LPA should be considered just as essential as the importance of making a will.  The useful aspect of an LPA is that once it is in place, it is there for life and can be called upon when needed.  Many people realise the importance of an LPA when it is too late and then have to apply for a deputyship.

  • I have a spouse/ partner – do I need a LPA?

    Any assets in your sole name your partner will not be able to have access to, such as ISAs, savings accounts, investments and pensions.  Additionally, the British Banking Association has advised that when one account holder of a joint account loses capacity, the other joint holder may not be able to access the funds without a LPA in place.

  • Can I have a joint LPA with my spouse/ partner?

    All LPAs must be made by individuals, not jointly. However, you could appoint your spouse/partner as one of your attorneys, but there are potential issues if you divorce, or legally separate.

  • What is a certificate provider/ person to be notified?

    A certificate provider is someone who confirms that you have the understanding needed to make a Lasting Power of Attorney.  This can be someone you have known personally for more than two years or an appropriate professional (such as a GP or solicitor specialising in mental capacity work).

    As part of the LPA service, we can act as certificate provider so long as we are not appointed as a professional attorney.

    A person to be notified is someone who receives a form to say you are registering your LPA.  If they have concerns, they can then raise them.  If not, they do not need to take any action.

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