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By Laura Colling

Oct 9th, 2018

"I don't need a Lasting Power of Attorney, I have a will."

Why this common misconception can end up costing you and your family in the long run.

Have you considered who will manage your affairs for you if you become unable to do so through illness, accident or old age?  It may seem obvious, but a will only comes in to effect when you die; your executors do not have the authority to deal with your affairs while you’re alive even if you have lost capacity.  This is where Lasting Powers of Attorney come in.

What is a Lasting Power of Attorney?

On 1 October 2007, the relevant provisions of the Mental Capacity Act 2005 came into force allowing you to create Lasting Powers of Attorney appointing an attorney or attorneys to make decisions and manage your affairs for you should you lose the capacity to do so yourself.  There are two kinds of Lasting Power of Attorney; one for your property and finances and one for your health and welfare.  In each kind of Lasting Power of Attorney you are able to set out your preferences and instructions in respect of how your attorneys should act.

Protecting your property and finances

The property and finances Lasting Power of Attorney allows your attorneys to manage your affairs.  This will allow them, for example, to run your bank and savings accounts; make or sell investments; pay your bills; and buy or sell your house.  This kind of Lasting Power of Attorney is vital to ensure that your family have the authority to deal with your finances on an everyday basis, as well as if larger decisions are required i.e. if your house needs to be sold to pay for residential care.

Determining your health and care

The health and welfare Lasting Power of Attorney allows your attorneys to deal with decisions relating to your medical treatment (potentially including life-sustaining treatment); where you live; and your day-to-day routine. 

Some clients of mine have particularly strong views on what medical treatment they would like to receive, or perhaps more importantly, which treatment they would refuse.  While a doctor will act in your best interests and should take your family’s views into account when making decisions about your care, they may not do so.  Appointing someone you trust as your attorney for your health and welfare and being clear about your wishes ensures that these will be followed. 

What can happen without Lasting Powers of Attorney

If you do not put in place Lasting Powers of Attorney while you have the capacity to do so, it is likely that your family will need to make an application to the Court of Protection to be appointed to deal with your affairs if you lose capacity in the future.  This process is costly and time consuming and the person appointed as your deputy might not be who you would have chosen.

I recommend Lasting Powers of Attorney to all my clients regardless of their age.  Unfortunately, none of us know what’s around the corner.  It is not a pleasant thought, but you may be involved in an accident or become seriously ill unexpectedly.  You could avoid thinking about this until you’re older, but it is much better to put something in place now for your peace of mind and to save your family the stress and cost of applying to the Court of Protection in the future.

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