Lasting Powers of Attorney: Myth Vs Reality

A Lasting Power of Attorney (LPA) is a legal document which authorises a nominated person (or persons) to deal with your affairs if you are not able to.  There are two types of LPA, one dealing with property and financial affairs and another for health and welfare.

Often people fail to make a LPA because of misconceptions about what one is and why it might be needed.  Over the years we have heard:

1 “My family will look after me, so I don’t need a LPA”

If you were to lose mental capacity and unable to manage your affairs, your partner (even if you are married or in a civil partnership) or your family would not automatically have the legal authority to manage your affairs without a LPA.  They would not be able to access your bank accounts to pay your bills or make any financial decisions for you.

2 “Our assets are in joint names, so we don’t need a LPA”

People are often surprised to hear that where you hold a joint account with your partner or another person and you lose capacity, the other account holder will not automatically retain the authority to manage the joint account.  Routine things like standing orders or direct debits may be able to continue as they were authorised when you had capacity, however the account will otherwise be frozen.  The other account holder will not be able to access the funds without someone who has legal authority (i.e. a LPA) to manage your affairs on your behalf.

3 “My next of kin can make health decisions for me”

“Next of Kin” is a legal term used to describe your closest living relative.  They do not have legal authority to make health or medical decisions for you.

A person appointed as your health and welfare attorney can coordinate with medical professionals about you and make decisions about your welfare when you are not able to.

Without a health and welfare LPA, medical professionals are required by law to make decisions which they believe to be in your best interests even if these do not align with yours or your family’s beliefs.

4 “I have a Will, so I don’t need a LPA”

A LPA operates during your lifetime, allowing your appointed attorneys to make decisions about your health and welfare or manage your property and financial affairs (depending on which LPA they are appointed under).  

Your attorney’s authority will cease on your death, at which point the administration of your estate will be dealt with by with by your named executors.

5 “LPAs are for the elderly”

You could lose capacity at any time for many reasons e.g. an accident, a stroke or being unconscious, by which time it could be too late to make a LPA.  By putting a LPA in place earlier, it could prevent complications later. 

It is important to plan ahead and create the necessary legal documents, such as a LPA while you still have capacity.  This ensures that someone you trust has the authority to manage your affairs and make decisions on your behalf if you are unable to do so yourself.

If you do not have LPAs in place and you lose capacity, someone may need to apply to become your deputy through the Court of Protection.  A deputy is appointed by the Court to manage your affairs when you’re incapable of doing so.  The process is more time consuming and costly than having a LPA in place beforehand.

Our Trusts and Estates team have a wealth of experience in advising on the preparation of LPAs and are experts in delivering the best outcomes for clients of all ages who are facing important life decisions.  Debbie Gale, Sarah Pitman and Caroline Fletcher are all full accredited members of the Association of Lifetime Lawyers (formerly Solicitors for the Elderly), and have expertise in advising those with complex needs and who may need extra support.

More details about the Association of Lifetime Lawyers can be found here: Home | Lifetime Lawyers

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at September 2024. Specific advice should be sought for specific cases. For more information see our terms and conditions.