It is a common misconception that a Lasting Power of Attorney (LPA) is not required until later in life.
You may already be aware of the importance of setting up an LPA – in case you eventually become incapable of making decisions, for example, if you suffer from Alzheimer’s Disease. However, that would be many years in the future, so why should you need to make any plans now?
The truth is that it is never too early to arrange your LPA and unfortunately many people are unaware of this.
Why might a Lasting Power of Attorney be required?
An LPA is activated when it is registered at the part of the Court called the Office of the Public Guardian. The most common reason for the use of an LPA is age-related dementia, such as Alzheimer’s Disease, but there are many other reasons including:
- an episode of serious mental illness
- a serious illness that leaves you incapacitated
- an accident resulting in serious brain injury
- an addiction serious enough to impair decision-making
- a stroke causing injury to the brain
You can choose whether your Attorneys act for you only when you have lost mental capacity (the ability to consider information and make informed decisions), or, you can choose for your Attorneys to act as soon as your LPA is registered, even if you still have your capacity. For example, if you had a sight impairment and needed assistance in implementing decisions you have made or if you became immobile.
When should you arrange a Lasting Power of Attorney?
Anyone over the age of 18 is entitled to set up an LPA, providing that they are judged to have the mental capacity at the time.
In England and Wales, this must be confirmed by either someone who is not a family member and has known you for at least 2 years, or else a professional such as a doctor or solicitor.
The crucial thing is that this must be done before you lose mental capacity. If this has already been judged to have happened, you will not be considered legally capable of making the necessary decisions to appoint an Attorney and the decision will be referred instead to the Court of Protection.
While the Court of Protection is a valuable fall-back for anyone who has failed to set up an LPA, it has a number of serious disadvantages. It can be an expensive and long-winded process, which will leave your affairs in uncertainty until the appointment of a Deputy is made. Also, while the Court of Protection will do its best to follow what it thinks your wishes would be, there is no guarantee that the person appointed will be the person you would have chosen.
By contrast, an LPA appoints Attorneys that are chosen by you and should be people who you trust and know you well and would carry out your wishes if you were to lose your decision-making ability.
Why might you require a Lasting Power of Attorney early?
As you will see from the list above, by no means all causes of losing mental capacity are age related.
Accidents, illnesses, mental health problems and addictions can unfortunately occur at any age, and even strokes, though principally associated with older people, can happen at a younger age.
If tragedy strikes and you are left without mental capacity, without an LPA set up, you are likely to face serious difficulties. While the Court of Protection is contemplating your case, both your financial and welfare affairs may be left in uncertainty, just at a time when you most need decisions.
For instance, you may need specialist care or to move into long-term residential care. Without an LPA, no-one will be authorised to make that decision or to release the funds required to pay for it. Unless your family are able to fund you in the interim, you could be unable to access these services.
Similarly, any essential payments you need to make will be left unpaid, unless they are standing orders or direct debits previously arranged. Though creditors may well be willing to wait for a decision to be made, this could result in further unnecessary stress and anxiety for your family.