Do you know who would look after your property, money and financial affairs if you lose capacity to manage them yourself? This is an important question for us all but particularly as we age and issues such as dementia and memory loss can potentially affect us.
A will is used to deal with property and finances after we have passed away but a Lasting Power of Attorney (LPA) allows family or friends to help with our financial affairs (or make decisions about health and welfare issues) if we become physically or mentally unable to manage them for ourselves. According to the Office of the Public Guardian, there are currently around 2.5 million registered LPAs.
Deputyship vs LPA
A retired senior judge at the Court of Protection recently questioned the appropriateness of LPAs in protecting vulnerable people who have lost capacity to manage their own affairs. However, if LPAs are prepared with the assistance of a solicitor, then I believe they have a valuable role to play in protecting people who are or may become vulnerable.
The alternative is for someone to apply for Deputyship after the person has lost mental capacity. Unlike Deputyships, LPAs allow the individual to choose the person or people they want to entrust with making decisions on their behalf. The other significant difference is the cost of an LPA compared to an application for Deputyship.
Knowledge within a family of the existence of the LPA can be extremely helpful in protecting the individual from being taken advantage of, and in some cases, can minimise the chances of family members falling out over a loved one’s financial management.
Appointing the right Attorney
Choosing who will be appointed as Attorney is a very big decision for the Donor (the person making the LPA). An experienced solicitor would discuss this in detail with the Donor. They would also check if there is another friend or family member that should be appointed or notified of the LPA. An Attorney must always act in the best interests of the Donor so using a solicitor to help make the decision can help prevent that person from being taken advantage of by an unscrupulous family member, friend, neighbour or care worker.
A solicitor will ensure they speak to the Donor in private in order to be satisfied that they know and understand the importance of the decision they’re making and who they are appointing. They will assess the individual’s mental capacity and whether they appear pressured into making the LPA in a particular way. Again this helps to prevent someone being pushed or bullied into something they are unhappy with or don’t fully understand.
Alternative arrangements should be included in your instructions in case something were to happen to your chosen Attorney. Your solicitor will discuss your conditions and preferences to ensure your views are properly reflected in the document. This is also important to ensure that in the event of you losing mental capacity, the Office of the Public Guardian is happy to allow the LPA to be registered.
Here at Switalskis Solicitors we have an experienced Wills, Trusts and Probate team who would be happy to assist you or a family member with the preparation and registration of LPAs. To contact a member of the team please call 0845 1227790.
Disclaimer: The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice, and the law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.