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A question of choice

Article originally featured in the Yorkshire Post Voices.

Every adult should consider having a Lasting Power of Attorney. It can be uncomfortable to talk about what would happen if we lost our capacity, but imagine how difficult things would be if the unexpected happens and you do not have one in place.

We all have our own opinions and approaches to planning for the future. You may have planned ahead – investments, a will, pension. Or you might want to enjoy what you have now and worry about the future later. But what if the future is right now?

For some, today marks the day their life changed forever. They started their day as they normally would – had breakfast, took the dog for a walk, took their kids to school and set off for work. They didn’t know what was around the corner – an accident or an underlying illness that took away their mental or physical capacity beyond that point. Who will now make the decisions for them or will act in their best interest?

Whilst there is a higher risk of elderly people losing their mental or physical capacity, I also believe that younger people, over the age of 18, should consider who will act on their behalf if they are no longer able to make decisions for themselves. Yet it is something very few younger people consider. Many people have a will in place, but a will protects your wishes when you pass away. A Lasting Power of Attorney protects your wishes if you become vulnerable and unable to continue to make important decisions due to ill health, long-term illness or an accident.

Unlike an ordinary or general Power of Attorney, who can look after your financial affairs for a temporary period, a Lasting Power of Attorney (LPA) enables you to appoint someone else to make decisions about your welfare, money or property. It allows you to choose someone you know and trust to make decisions for you if you were to lose capacity in the future. To ensure attorneys are clear on their role, we provide our clients with a booklet to complete to keep alongside their LPAs, providing guidance for their attorneys as to their wishes and the decisions they would like them to make on their behalf. 

For business owners, a Business Lasting Power of Attorney (BLPA) is important for business continuity planning and can form part of your crisis management strategy. Without one, a business may be in breach of certain contracts or legislation and you may struggle to deal with issues relating to the running of a business such as signing legal agreements or paying wages. A BLPA is an LPA restricted to decisions regarding your business. Therefore, it may run concurrently alongside personal LPAs. It may be that you have different appointed attorneys to represent business interests and one specifically to represent personal interests.

Compared to the alternative, which I will come on to, LPAs are reasonably simple to assign and are set to become more so with upcoming reforms. In May, Ministers set out plans to modernise the LPA system, to help make it easier to access, quicker to use and more secure from fraud, with new ID checks and strengthened verification process. It will move away from a paper-system and become completely online, for those who wish to complete online – reforms which aim to help protect vulnerable people from abuse or fraud.

Without a Lasting Power of Attorney, in the event of you losing capacity, your representative will have to make an application to the Court of Protection for the appointment of a deputy who will act on your behalf under the court. This can take six months, so a lengthy process when often decisions need to be made immediately. It is also a more expensive process and the court will require a review once every year. The crucial part is that you do not get to choose the person who will make your decisions in the future.

We do not have a crystal ball, but we can put things in place which can make our lives, and the lives of loved ones, more straight forward if and when needed. In my opinion, this is about making your own choices and being in control of your future should you lose capacity.  

Catrin Lloyd

Catrin is a Solicitor and heads our Wills & Probate team. Along with her team, she helps clients across Yorkshire and beyond through our network of offices. She qualified in 2005 and joined Switalskis in 2010. She was awarded Associate status by the firm in 2019 and was instrumental in helping us become Dementia Friendly. Catrin's profile