Do you have someone to manage your affairs? If not – you need an LPA

Monday 20 August 2018

It is estimated only around a third of the adult population have a Will – and even less have made a Lasting Power of Attorney (LPA) to deal with important lifetime decisions, say Buckles Solicitors LLP.

How many of us have considered who would manage our affairs and make decisions if we have an illness or accident that leaves us incapable of looking after things ourselves?

An LPA is a legal document in which the person making it chooses someone they trust (the Attorney) to make decisions on their behalf, and can be made for financial decisions (Property & Financial Affairs) and / or medical and care decisions (Health & Welfare).

It is a valuable tool, but the right safeguards must be in place and everyone needs to understand what is involved, and the responsibilities it brings, says Buckles Solicitors private client partner, Karl Dembicki.

The debate surrounding LPAs has been re-ignited following a recent Supreme Court ruling which upheld an agreed withdrawal of end of life treatment. It has said that clinically assisted nutrition and hydration (CANH) can be withdrawn from patients in a long-term permanent vegetative state without the approval of the Court of Protection when both family and doctors agree that this is in the patient’s best interest.

Karl said: “The judgment raises ethical questions surrounding the withdrawal or refusal of medical treatment at the end of life - and the process required to make that decision. Many people view the provision of food and fluid by tube as part of basic care which ought to be rarely withdrawn.

“English law views artificial hydration and nutrition as a medical treatment and therefore something that can be withheld or withdrawn if it is in the patient’s best interests. Fortunately, the Mental Capacity Act 2005 ensures that people are given a rightful say in their own decisions when they may be unable to make such a decision themselves through either a Lasting Power of Attorney for Health and Welfare (LPA) or an Advance Decision previously called a Living Will.”

Why have one?
By using a Property & Financial Affairs LPA, you can appoint someone to look after your financial affairs on your behalf. You can also make a Health & Welfare LPA, which can be used to appoint someone to deal with issues such as where you live and medical treatment if you become mentally incapable.

Without an LPA, if someone becomes mentally incapable, whatever their age, their financial and personal affairs will have to be managed by a deputy appointed by the Court of Protection. Generally, this makes for a slow and potentially expensive business for families, who will have to apply to the Court for permission to undertake transactions.

How do they work?
An attorney under a health and welfare LPA can only make a decision on your behalf if you are incapable of making the decision yourself.

In the case of financial affairs, once the LPA is registered your attorneys will have power to enter into any transaction, unless you have specifically forbidden it, so they will be able to deal with investments and to write cheques.

If you are mentally capable, the attorney should only do what you authorise them to do - for example, if you had physical issues which made it difficult for you to attend a meeting or to sign documents and you instructed the attorney to act on your behalf. If you become mentally incapable and are no longer capable of authorising or consenting to the attorney’s decisions or actions, the attorney will be able to make decisions and do things on your behalf.

Karl added: “An LPA will ensure that someone, chosen by you, can deal with your property and financial affairs – or even make health and welfare decisions on your behalf – in the event that it were ever necessary or beneficial for them to do so. We cannot stress enough the importance of having a Will and LPA created by a solicitor. When people are fit and healthy they often don’t want to think about writing a Will or making an LPA and what will happen on death or incapacity.

“However, making a Will and LPA is the perfect opportunity to get something in place for when it is needed. It will give peace of mind to you and your loved ones.”

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