Powers of Attorney: 5 Common Misconceptions Clarified
6th February 2020 by Alix Wigley
Powers of attorney are fundamental to life planning providing someone you trust the authority to make decisions on your behalf if you are no longer able to, or if you no longer want to make the decisions yourself.
There are two types of Lasting Power of Attorneys (LPA), one covers decisions in relation to your property and finances and the other covers decisions in relation to your health and welfare.
Many people overlook the importance of appointing an attorney and often this is because they believe the misconceptions surrounding Powers of Attorney.
Below we clarify 5 of the most common misconceptions.
- IF I LOOSE CAPACITY, MY FAMILY WILL MAKE DECISIONS FOR ME.
75% of the people believe that their spouse, partner or close family members can automatically make decisions on their behalf if they are unable to do so themselves.*
Unfortunately this is incorrect.
Without an LPA in place, even your spouse would not have the legal authority to make decisions on your behalf. Regardless of your relationship to someone, if you do not appoint that person to act as your attorney whilst you have the capacity to do so they will be unable to make decisions on your behalf if you are unable to do so yourself.
- LPAS ARE FOR THE ELDERLY?
Every 90 seconds someone is admitted to hospital in the UK with an acquired brain injury.*
LPA’s tend to be associated with old age and dementia but it is often the unexpected accidents or illnesses that cause the most difficulty for family and friends.
We live in a world where insurance policies are commonplace and people hope that their insurance will cover them in the event of an accident or critical illness but they often overlook the possibility of an accident or illness resulting in their mental incapacity.
An LPA should be viewed as an essential insurance policy. An insurance policy that you hope will never have to be used but if you do lose capacity during your life time, you will have the comfort of knowing that you have appointed someone you trust to step in making decisions on your behalf.
- THE ONLY ASSET I HAVE IS MY HOME, SO WHY DO I NEED A LASTING POWER OF ATTORNEY?
You might consider that an LPA is not necessary for you because you don’t have a substantial amount of assets. If you own a home and lose capacity no one will be able to step in and sell your home on your behalf.
Often your home is your main asset and this may need to be sold to pay for your care. If you have not appointed someone to act as your attorney no one will be able to deal with the sale of your home until someone (a deputy) has been appointed by the court.
- I HAVE A WILL SO WHY DO I NEED AN LPA?
The provisions of your Will only come into force on your death, the executors under your Will have no legal authority to deal with your assets whilst you are alive, which is why you need an LPA.
Contrary to this, the appointment of an attorney dies with you and therefore your attorney will have no authority to make decisions or deal with your assets after your death, which is why you also need a Will.
- I DO NOT NEED CAPACITY TO APPOINT AN ATTORNEY
If you lose capacity without having executed a power of attorney, you will lose the ability to appoint an attorney of your choice.
An application would need to be made to the Court of Protection and a deputy would have to be appointed to make decisions on your behalf.
Having lost the capacity to make your own decisions, you would have no say in deciding who acts as your deputy. If a deputy was appointed to act on your behalf they would have to be supervised by the Office of the Public Guardian regardless of your relationship to them. This includes your next of kin.
As at 31st March 2019 the Office of the Public Guardian were supervising 59,408 deputyship orders. If the court appoints a deputy to make decisions on your behalf there will be annual court fees paid from your assets unless an exemption applies.
If you would like any further information or wish to discuss LPAs please contact a member of our Private Client team on 01202 755980 or firstname.lastname@example.org.
*The Office of the Public Guardian Survey