Does Everyone Need a Power of Attorney?
Each year, hundreds of thousands of lasting power of attorneys are appointed in the United Kingdom. This represents a positive trend; people are considering all eventualities and are prepared should the worst happen.
If you are sitting there without a power of attorney, you might be asking yourself why they are important, what do they do, and does everyone need a power of attorney in the first place?
At Just Wills and Legal Services we feel strongly that the more people have an LPA in place the better. Find out more in this blog.
Lasting Power of Attorney: What is It?
A Lasting Power of Attorney (LPA) is a legal documentation that allows you to appoint one or more parties to the position of power of attorney. An LPA acts on your behalf to make/help make key decisions if you lack the capacity to do so yourself. An LPA gives you additional control over your situation, no matter what happens.
The individual making an LPA is referred to as the donor, while the person nominated is known as the attorney. It is common for this person to be either a family member, a close friend, or a solicitor. An LPA is only deemed valid if you are of sound mind when appointing your attorney.
Prior to The Mental Capacity Act coming into force in October 2007, a person would be forced to apply for an Enduring Power of Attorney (EPA). An EPA and an LPA do have some base similarities, however, an LPA is generally much more comprehensive. If a person’s power of attorney precedes 2007, it may be possible for them to still have an EPA in place.
While an EPA may still be valid, the main reason that EPAs were replaced in the first place is that LPAs are significantly more robust documents in comparison — standing up to much more scrutiny and significantly limiting the potential for abuse compared to an EPA.
Perhaps the biggest benefits of upgrading your EPA include that unlike an EPA, an LPA can be registered with the Office of the Public Guardian at any point, not just when the donor is deemed to have lost their mental capacity. The importance of this is that should the EPA documentation be registered once mental capacity is lost and the attorney is deemed to not be suitable, the donor will be unlikely able to nominate an alternative.
Additionally, EPAs only cover affairs surrounding property and finances, whereas an LPA for Health and Welfare are designed to allow key decisions of this field to be made as well.
Common situations where an LPA is required include if you:
- Have an accident
- Are suffering from a serious illness
- Are unable to make decisions for yourself (if you lack mental capacity)
- Are unavailable (eg. you are out of the country)
There are two types of lasting power of attorney commonly utilised, a Health and Welfare, and a Property and Financial Affairs LPA.
A health and welfare LPA will have permission to make important decisions regarding your healthcare and medical treatment should you be unable to make choices for yourself. Alternatively, a property and financial affairs LPA can manage your assets and bank accounts in a similar situation.
Why Do I Need a Lasting Power of Attorney?
You need a lasting power of attorney if you want to guarantee long-term security towards your health and finances. Without an LPA, issues from accepting medical treatment to keep you alive, and even to what you eat/wear would likely be decided by somebody you don’t know.
It may be possible for friends or family to make these key life decisions on your behalf. However, they would likely need to undergo the long, complicated, stressful, and expensive process of going to court. This would leave important decisions in a state of limbo while proceedings are cleared up.
If you do have mental capacity, appointing an LPA is a relatively simple and concrete way of giving somebody you trust the power to make decisions on your behalf — it is also possible to leave information for your LPA on what your exact wishes are should you be unable to make your own decisions.
I Already Have a Will, Do I Need a Power of Attorney?
If you already have a will, it is recommended that you still appoint a power of attorney. While there may be some issues that can be covered by both a last will and testament and a power of attorney, there are also elements that an LPA offers that a will simply cannot.
Ultimately, a standard will and an LPA act to offer security against different things. A will provides for your loved ones once you pass on and acts to secure your key assets. It can also be vital in determining childcare should you pass.
In contrast, an LPA is only valid while the donor is alive.
One type of will that some consider to be a viable alternative to an LPA is a living will. Living wills can be used as a statement of your refusal to specific forms of treatments should you be unable to make this clear yourself.
However, a living will cannot give consent to treatments, it merely acts to refuse. When compared to an LPA, a living will is significantly more limited in what it offers to you. It is recommended that even if you have a will/living will, that you consider putting a lasting power of attorney in place, just in case.
Do I Need a Solicitor for Power of Attorney?
There is no requirement for a solicitor when creating a lasting power of attorney. The applications can be filled via an online or physical application form, or even over the phone. However, a solicitor will ensure the process is done efficiently and effectively — they guarantee that every detail is considered and absolutely no mistakes are made in the process.
It should be remembered that using a solicitor for your power of attorney will cost more, but at Just Wills & Legal Services, we will discuss your wishes and requirements and do our very best to keep costs to a minimum.
How to Register a Power of Attorney
The process of how to register a power of attorney is important, with multiple different steps; from deciding who to appoint to applying to The Court of Protection. It is vital that you consider all possibilities and make no mistakes along the way as it is generally not possible to amend your power of attorney once it has been registered.
Before you actually register a power of attorney, there are a number of things it is vital that you consider, this includes:
- Decide what to cover: The first step should be earmarking which exact area your LPA should cover (Health and Welfare or Property and Financial Affairs).
- Consider more than one LPA: You can appoint multiple powers of attorney to act across various different specialities. It may be worth speaking to a specialist if you are considering this option, as it can complicate the situation.
- Decide who to appoint: When making the decision of who to appoint as your attorney, it is vital that you completely trust them to make key decisions. You should also consider if they will want to take on the responsibility, and if they are likely to be available.
- Register your LPA: Your LPA must be registered with the Court of Protection for activation. The process of applying and registering an LPA can take up to 12 weeks.
When it comes to registering a power of attorney, some people prefer to have the agreement signed by all parties, then leave registration for a later date. This is not recommended. The sooner your LPA is active, the sooner crucial decisions can be made on your behalf, rather than having to wait the 12 week application period.
When registering your LPA, there is typically a fee. This is generally £82 for each LPA in England and Wales, meaning that it would cost you £164 to register an LPA for both Property & Financial Affairs and Health & Welfare.
How Just Wills and Legal Services can Help
Creating and applying for a power of attorney is a vital move anybody can take to ensure their best interests and their wishes are considered, no matter what might happen to them later in life.
We understand that nobody wants to think about the worst case scenario, but it is important that you are prepared for it.
At Just Wills and Legal Services we have a specialist team that has been operating in estate planning, power of attorneys, and much more for decades. We provide an efficient and effective service that you can rely on to provide you with peace of mind.
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