Control or lack thereof is often the biggest concern for people when making a Lasting Power of Attorney (LPA). However, this article explores the benefits behind making an LPA whilst you are able to do so and why it is crucial to do so.
To discuss the benefits of an LPA, it is important to outline the basics. An LPA is a legal document that is used to appoint someone you trust as your attorney to make decisions on your behalf when you lose the mental capacity to do so yourself. It should be noted that there are two types of LPA:
A Health and Welfare LPA which allows your appointed attorneys to liaise with medical professionals, care givers or others regarding decisions concerning medication or even end of life care as many do indeed have a preference with regards to this.
A Property and Financial Affairs LPA which allows your appointed attorneys to access your bank accounts to pay any outstanding bills, buy and sell any property held and generally managing all assets and liabilities held.
Avoidance of a Court of Protection deputyship application
Making an LPA avoids the need for an application to be made to the Court of Protection for a deputyship order. A deputyship order is similar to an LPA in that a third party acts on your behalf. However, the difference between an LPA and a deputyship order is that an LPA is made by you for yourself and whilst you still have capacity. A deputyship order is made by someone else on your behalf when you have lost capacity, if an LPA has not been made by you previously. A deputyship application can be extremely time consuming and more expensive than an LPA and as such in order to save said time and money, making an LPA is a worthwhile route to pursue.
Retain control by freedom of choice
The biggest benefit of making an LPA is to keep control. If you lose mental capacity without an LPA in place, then an application will need to be made to the Court of Protection to have a deputy appointed to deal with your financial matters. If a deputyship order is applied for, then you will have little to no say regarding who is to act as your deputy, this could be a court appointed deputy, or a professional deputy or indeed a friend of family member. In all cases, the crucial choice of who has access to your personal matters is not yours where an LPA is not made. The flexibility to choose who you wish to appoint to manage your matters highlights the need for an LPA.
The easiest way to retain control over your health and property is to ensure you are appointing attorneys who you absolutely and unequivocally trust. An attorney may be a family member or a trusted professional such as a solicitor. By making an LPA whilst you still have the capacity to, you are making a decision now to safeguard yourself later.
Further, a deputyship order is much more administratively burdensome. Once a deputy is appointed by the Court on your behalf, your deputy must annually report to the Office of the Public Guardian with a detailed overview of all incomings, outgoings and general decisions made on your behalf during the year. This must be done every year. This may prove to be overwhelming for loved ones who may be acting as your deputy. An LPA does not require this reporting and allows your attorneys to take care of you first without worrying about reports or additional paperwork.
Often, where an LPA is in place and a decision needs to be made for you, then the process of making that decision is a lot more straight forward. If an LPA has not been made, it may well delay decisions that need to be made regarding your property or health as some decisions would require a separate application to the Court under a deputyship. Sometimes, a decision needs to be made sooner rather than later and making an LPA allows your attorneys to have more autonomy in making those decisions should time be of the essence.
Ultimately, making an LPA is less time consuming, less administratively burdensome and cheaper for all involved in comparison to the alternative; making a deputyship application. It should be said that to make an LPA is not to give up control but instead is one of the more important things you can do to retain control.
If you do not have an LPA in place and wish to speak to someone about this then please don’t hesitate to contact our Private Client so that we may assist you further.
The above is meant to be only advice and is correct as of the time of posting. This article was written by Zara Chaudary, Solicitor in the Private Client team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of March 2023.