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The importance of having Lasting Powers of Attorney in place

The importance of having Lasting Powers of Attorney in place

Abigail Hart

"I'm alright at the moment, thank you, no need to worry about it just yet." 

As a Solicitor, I often encounter high levels of resistance to my polite suggestion that Clients make Lasting Powers of Attorney (LPA) (to nominate someone to step in and take over if they can no longer manage their own decision making). 

There are two types of LPA, one for health and welfare decisions and one for financial decisions.  The procedures for completing and registering the LPA forms are rigid but once the process is complete, the LPA documents can be set aside in the hope that they won’t be needed, much like an insurance policy.  However, younger and fitter Clients who are happily making their own decisions prefer to think that LPAs are irrelevant or can be postponed to the dim and distant future. 

Older Clients, who are perhaps starting to struggle, either indignantly repel any implication that they can’t manage or reluctantly follow my advice.  This resistance is perfectly understandable:  I for one want to make my own financial decisions and my own medical and welfare decisions and I would hate to be living in a situation where that’s not possible. 

Yet despite my (relative) youth and fitness, I have made an LPA.  Bad things do happen, sometimes unexpectedly, and not always to other people.  Many a time I have taken a phone call from an anxious family member to the effect that the parent has had a stroke or equivalent and the caller wants to “get Power of Attorney”.  Unfortunately, by then it’s too late. 

The time for the parent (not the caller) to have made the LPA was whilst fit and well enough to choose who to trust to step in and take over in the event of long term loss of mental capacity.  It is the Donor who chooses the Attorney and the Attorney agrees to act; Attorneys are not self-nominated and the Donor must understand the nature and purpose of the LPA, otherwise it can’t be made. 

When choosing Attorneys, particularly from a pool of adult children, the criteria is not the order of birth or to make sure that no one feels left out; the criteria is who can deal with the paperwork effectively, particularly for financial LPAs.  If the adult children can’t or won’t work well together or disputes are anticipated, then the best option is to appoint a paid professional.

A loved one’s loss of mental capacity or a sudden health crisis is never easy but a bad situation doesn’t need to be made worse.  It’s much easier for the Attorneys to retrieve the LPAs and step in than for the family to deal with the fallout of a crisis situation with no advanced planning. 

When the banks/utility companies or whoever insist that the account holder (now too ill) is the only person with authority to discuss the account, the LPA gives that authority.  In its absence, the result will be increased stress and chaos, with bills or care fees unpaid and no access to the funds sitting in the bank accounts.  In that situation, the only recourse is an application to the Court of Protection for Deputyship, which involves long and complex forms, extensive legal costs and significant delay. 

It's worth overcoming that instinctive resistance. 

Disclaimer:  This article contains the opinions of the writer and does not constitute legal advice.