With rates of dementia and other debilitating illnesses on the rise, more people are planning to clarify their wishes for the future and protect their finances by making a lasting power of attorney as well as making a will.  With rates of dementia and other debilitating illnesses on the rise, more people are planning to clarify their wishes for the future and protect their finances by making a lasting power of attorney as well as making a will.

Shelly Wainwright, senior associate and wills and probate lawyer at Ansons Solicitors in Staffordshire, answers on the top six things you need to know if you are thinking about making a lasting power of attorney.

1. Why do I need a lasting power of attorney (LPA)?

A lasting power of attorney can help you protect your future finances and welfare. It allows you, the donor, to appoint an attorney to assist you in case you become physically or mentally incapable. An LPA is made by you while you have the mental capacity to fully understand the consequences of what you are signing.

2. What types of lasting power of attorney (LPA) are there?

There are two types of LPA:

• property and financial affairs; and
• health and welfare.

A property and financial affairs LPA enables your attorney to act on your behalf in relation to your finances such as managing bank accounts and investments and buying and selling property (subject to restrictions and conditions). The health and welfare LPA enables your attorney to act on your behalf in relation to your health and welfare including decisions regarding medical care, where you live and whether to give or refuse consent to life sustaining treatment.

3.  When can an attorney act?

A property and financial affairs attorney can act while you have your mental capacity if you would like them to do so. The attorney’s powers continue if you lose your mental capacity.

A health and welfare attorney can only act if you lose your mental capacity and can no longer make your own decisions.

4.  How many attorneys can be appointed?

You can appoint as many attorneys as you wish. It is usually advisable to appoint more than one attorney. You can decide whether your attorneys can act “jointly” so they must do everything together or “jointly and severally” so that the attorneys can act together or independently of each other. You can also appoint replacement attorneys who only act in the place of the original attorneys if certain circumstances arise.

5.  What are the safeguards?

When you sign your LPA an independent third party must sign a certificate to confirm that you have your mental capacity and understand what you are signing. You can include guidance, conditions and restrictions that the attorneys must follow in the LPA. Your LPA must be registered with the Office for the Public Guardian before it can be used.

6.  What are the consequences of not having an LPA?

If you do not have an LPA and you lose your mental capacity then your relatives will not be able to deal with your property and financial affairs and/or your health and welfare on your behalf. Your health and welfare decisions could then be made by Social Services and/or the local authority without any reference to your relatives. If your relatives needed to assist they would then have to make an application to the Court of Protection for an order to be appointed as a deputy. This application is expensive and time consuming and there is no guarantee that an order will be made. This can all be avoided by making an LPA.

For more information on making a lasting power of attorney or any other wills and probate matter contact Shelly Wainwright on 01543 267984 or email swainwright@ansons.law.

Ansons have offices in Cannock, Lichfield, Halesowen, and Sutton Coldfield by appointment.