The importance of Lasting Powers of Attorney at any stage of life
Historically, Lasting Powers of Attorney have only been considered later in life, when someone is struggling to make decisions for themselves. Thankfully, this opinion of powers of attorney is on the way out, and they have received some positive news coverage recently, notably in the sad case of Good Morning Britain Presenter Kate Garraway, whose husband Derek Draper is currently very ill in hospital. This blog post will look at this particular case in more detail and will bust some of the myths surrounding Lasting Power of Attorney.
What exactly is a Lasting Power of Attorney (LPA)?
An LPA gives the person/people who you trust the legal authority to make financial or health decisions for you – should you want and/or need them to do so. Your appointed attorney(s) can help manage finances, pay expenses, give consent to medical treatment, and organise care. An LPA can protect both the person who needs help, as well as those close to them, such as dependents.
Without a Lasting Power of Attorney in place, no one is legally authorised to make a decision for a person who has lost capacity (not even a spouse). This could leave both the person incapable of making a decision, and their family, vulnerable and exposed. Without an LPA in place, if a decision needs to be made on your behalf, whoever assumes responsibility of your affairs will need to make an application to the Court of Protection for a Deputyship Order. This process can be costly and time-consuming, and there will be on-going reporting requirements to the Court. A Deputyship Order for health and welfare decisions can be very difficult to obtain.
Why do I need a Lasting Power of Attorney?
It’s a common misconception that someone will only need a Lasting Power of Attorney in their later life, in the event of a loss of their decision-making capacity. Unfortunately, the reality is that a person could need an LPA at any point in their life.
The recent, widely reported, devastating circumstances of Good Morning Britain Presenter Kate Garraway highlights this point; Kate’s husband, Derek Draper, contracted coronavirus in 2020 and has remained in hospital for over a year. At the time of writing, Derek is in a coma, and does not have an LPA in place. This means that Kate Garraway is unable to make important decisions on behalf of her husband. These decisions can range from minor everyday matters, such as cancelling a subscription, to major issues such as being unable to access bank accounts, or to re-mortgage to cover a loss of income. Regrettably, Kate is not alone in this: there will be thousands of people across the UK in a similar situation, where they are unable to manager their partner’s affairs.
If I make a Lasting Power of Attorney, will I be giving up the ability to make my own decisions?
Contrary to popular belief, by creating a Lasting Power of Attorney, a person will not be immediately giving up the power to make their own decisions.
Whilst a person has capacity, an Attorney can only act with consent. An Attorney can only ever act without consent if it is established that the person cannot make their own decisions. An attorney must start by assuming that the person can make a decision and must take every possible step to make sure that the person is given the chance to make their own decision.
The most important factor when making an LPA is deciding who to appoint as your attorney(s). It must be someone you trust implicitly and who is capable of making important decisions and knowing when they are needed to make decisions.
When should I make a Lasting Power of Attorney?
Most people should consider making an LPA, for their own peace of mind as well as their loved ones’. I myself am relatively young and view myself as being in the fortunate position to have capacity to nominate a person who I trust implicitly as my Attorney, giving them the legal authority to step into my shoes and make decisions for me should I need them to do so. As a husband, I couldn’t think of anything worse than being powerless to access funds in order to look after my wife and family or to make an important medical decision.
How do I make a Lasting Power of Attorney?
An LPA comes in two forms: Property and Financial Affairs and Health and Welfare. The forms cover who you want to appoint as an Attorney, how and when they are to make decisions, and the type of decisions they can make.
The person making the Lasting Power of Attorney, the Attorney(s) and a Certificate Provider will need to sign the LPA. A Certificate Provider signs to confirm that the person making it has capacity, hasn’t been unduly influenced and understands the document. A Solicitor can act as a Certificate Provider. Once signed, the LPA is sent to the Office of the Public Guardian to register.
Find out more
Our expert team at Eric Robinson Solicitors can help you make an LPA. Please do contact us if you would like further information and advice.
Richard Wallace-Lower is a Partner and the Head of Wills, Trusts & Successions at Eric Robinson Solicitors, and will be happy to help with any queries. Richard can be contacted by email: firstname.lastname@example.org