Busting The Myths Surrounding Lasting Powers Of Attorney7th Mar 2023
What Are Lasting Powers Of Attorney? Why Do I Need Them?
Lasting powers of attorney (LPAs) enable you to appoint someone to manage your affairs if you become unable to do so. They are extremely useful legal documents that can save your loved ones a great deal of time, expense and heartache if you lose the mental capacity to take important decisions.
Banks, building societies, GPs, hospitals and care homes may all need to see a lasting power of attorney before agreeing to any requests that you’ve asked family members to make on your behalf. These organisations may refuse to help until they see an LPA.
Unfortunately, not everyone has lasting powers of attorney. There are various reasons for this: inertia and lack of awareness are two of them. But there are also a number of myths…
Myth 1. “You Don’t Need A Power Of Attorney If You’re Fit And Well.”
Yes, you do! The time to take out lasting powers of attorney is when you have mental capacity – because you won’t be able to do it after you’ve lost capacity. Leave it too late and your loved ones may have to apply to the Court of Protection to become deputies. This is significantly more complex, time-consuming and expensive than taking out powers of attorney.
It’s advisable to create powers of attorney even if you currently enjoy very good physical and mental health – an accident, illness or disability could happen at any time. Without powers of attorney in place, it may be difficult or impossible for someone you trust to manage your affairs on your behalf.
By creating power of attorney early, you can ensure that your attorney(s) will be able to act quickly and effectively if the need arises. This can give you peace of mind that your affairs will be managed in accordance with your needs and wishes.
Myth 2. “You Only Need One Lasting Power Of Attorney.”
There are two types of lasting power of attorney and most people are likely to need both:
- Property and Financial Affairs LPA, which allows you to appoint an attorney to manage money matters, such as paying bills, managing investments, and buying or selling property. It can be used while you still have mental capacity, as well as if you lose capacity in the future.
- Health and Welfare LPA, which allows you to appoint an attorney to make decisions about medical treatment, daily care and where you live. This type of LPA can be used only if you lose mental capacity in the future.
When creating LPAs, you have the opportunity to:
- choose who you would like to act as your attorney(s)
- set out clear instructions about how you would like them to make decisions on your behalf
- include any specific preferences or wishes you may have, such as your wishes about medical treatment or where you’d like to live.
You can appoint different attorneys for each type of LPA. You may want one person to make decisions about your medical treatment, but another to manage your finances.
Alternatively, you may wish to appoint more than one attorney for each type of LPA so that they can act jointly, or jointly and severally. Joint attorneys must make decisions together, whereas attorneys who can act jointly and severally can make decisions independently of each other.
Myth 3. “I Already Have The Necessary Power Because I’m Next Of Kin.”
This is a popular misconception. Being named as next of kin does not automatically give you the legal authority to make decisions on someone else’s behalf. If you want to be able to do so, you would need to be named as their attorney in an LPA.
This is an important safeguard. It prevents one or more people from taking control of someone’s affairs against the wishes of that person (or the wishes of their loved ones).
Think about it: if someone needs urgent medical treatment but no longer has mental capacity, then who is better placed to take decisions on their behalf? The caring family member named as an attorney in a Health and Welfare LPA? Or the distant relative (with a greedy eye on the will) who suddenly decides to get involved?
It’s important to note that being named as someone’s attorney is a significant responsibility, and you must act in their best interests at all times. If you have any doubts or concerns about your ability (or anyone else’s ability) to act as an attorney, you should:
- discuss these concerns with the person who has appointed you
- seek expert legal advice from a solicitor who specialises in lasting powers of attorney.
Myth 4. “I’ll Lose Control Of My Life If I Grant Power Of Attorney.”
No, granting power of attorney doesn’t mean that you’ll suddenly have control taken away from you. In fact, creating lasting powers of attorney can provide you with peace of mind that someone you trust will be able to take important decisions on your behalf if you become unable to do so yourself.
The Court of Protection is very robust when it comes to defending the right to take your own decisions. You still have the right to decide – even if other people may consider that decision to be unusual, eccentric, unpopular or unwise.
Under the Mental Capacity Act 2005, a person is considered to lack capacity if they are unable to make a specific decision for themselves – at the time the decision needs to be made – because of an impairment or disturbance in the functioning of their mind or brain.
The Act sets out a two-stage test for assessing mental capacity. The test requires that:
- The person must be able to understand the information relevant to the decision, including the consequences of making or not making the decision.
- The person must be able to use and weigh that information to make the decision for themselves.
If the person is unable to meet either of these two requirements, then they are considered to lack capacity to make the decision.
The assessment of mental capacity should be carried out on an individual basis, taking into account the person’s specific circumstances and the decision that needs to be made.
In some cases, it may be appropriate to seek the advice of a medical or legal professional to help determine whether a person has the mental capacity to take a particular decision.
Myth 5. “Once You’ve Set Up Powers Of Attorney, They’re Hard To Stop.”
It’s very easy to revoke any lasting powers of attorney you’ve created. You can revoke them at any time – as long as you still have mental capacity. You can do this by completing a Deed of Revocation, which is a legal document that confirms that you no longer wish your attorney(s) to act on your behalf.
If you are considering revoking a power of attorney, it is important to seek legal advice before doing so to ensure that you understand the implications of your decision and to ensure that the revocation is documented properly.
Revoking a power of attorney does not necessarily mean that you cannot create a new one in the future if you change your mind again.
Myth 6. “Only Family Members Can Be Granted Power Of Attorney.”
Not true! The person you choose to act as your attorney does not have to be a family member at all. You can choose anyone you trust, as long as they are over 18 years old and have mental capacity.
When choosing an attorney, it is important to consider their suitability for the role, as well as their ability to carry out their duties effectively. You should choose someone who is reliable, trustworthy, and who shares your values and beliefs.
The person you choose must be willing to act as your attorney and they must understand the responsibilities that come with the role. You should discuss your wishes and preferences with your chosen attorney and ensure that they fully understand your expectations.
Myth 7. “Lasting Powers Of Attorney Take A Long Time To Set Up.”
LPAs don’t take long to create but can they take time to register with the Office of the Public Guardian. Let me explain this in terms of each person/organisation’s role:
- You the client. It won’t take you much time at all. Usually just two brief meetings with your solicitor – one for us to explain the process, and the second for you as the donor of the power to sign the LPAs.
- Us the solicitors. Most powers of attorney are reasonably straightforward. They don’t take a great deal of work, usually around three hours each (but more time can be needed if the terms of the document are more complex than normal).
- The Office of the Public Guardian. This is where the waiting can be protracted. It can take the OPG around 16 weeks to register a power of attorney. Or even up to 20 weeks in some cases, the government has admitted. And without that official registration, an LPA is not valid.
Myth 8. “Powers Of Attorney Are Expensive.”
Lasting powers of attorney are not unduly costly, not in the great scheme of things – and certainly not compared with the cost of applying to the Court of Protection for a deputyship because a loved one has lost mental capacity and there were no LPAs in place.
The cost of taking out LPAs decreases based on how many you need:
- one LPA for one person – £700 plus VAT
- two LPAs for one person – £1,000 plus VAT
- four LPAs for a couple – £1,250 plus VAT.
That does not include the cost of registering each LPA with the Office of the Public Guardian.
Interestingly, the amount of money the OPG charges for registering LPAs has actually been decreasing over the years. That’s not something you expect these days – especially not from officialdom.
The OPG’s registration cost is now down to £82 per form. Before April 2017, the fee was £110 but thanks to efficiencies (and a rise in the number of LPAs being registered), the OPG found itself with a £90 million surplus.
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Get Expert Legal Advice On Legacies
Contact Coles Miller Associate Solicitor Jenny Oxley for specialist legal advice on setting up lasting powers of attorney (and reviewing existing enduring LPAs).
Jenny’s specialisms also include wills, Inheritance Tax, administration of estates, trusts, living wills and the Court of Protection. She is based at our Broadstone office.