News & Insights

Most people wouldn’t think they will ever suffer memory loss which prevents them from making their own decisions. Today, September 21st, World Alzheimer’s Day, is a global effort to raise awareness and challenge the stigma around Alzheimer’s disease and other dementia.

Dementia is still seen as an elderly issue, however a 2019 report commissioned by Alzheimer’s Society from the London School of Economics and Political Science (LSE), found there are currently around 900,000 people with dementia in the UK. This is projected to rise to 1.6 million people by 2040.

Many people mistakenly assume that if they ever become mentally incapacitated their family or friends will automatically be able to start managing their affairs on their behalf – paying bills, selling property or investments, deciding what sort of medical treatment or nursing care they should receive. However, in reality this is far from the case, and even your spouse or children have no automatic legal right to undertake such activities on your behalf.

Although sometimes an uncomfortable subject, planning for your future enables you to take charge of what you want to happen.

A Lasting Power of Attorney (LPA) is a legal document that allows you to make decisions about how you want to live your life, if you are not able to communicate them at a later date.

It authorises a person of your choice (your Attorney) to make decisions, and to manage your property and affairs, on your behalf, if you ever become mentally incapable of making decisions and managing your affairs personally at some point in the future.

You can choose to appoint more than one Attorney, and you can also appoint a Replacement Attorney who can act on your behalf if your first choice Attorney is unable to. If you appoint more than one Attorney you must decide whether they’ll make decisions together or separately.

Without an LPA in place, it often proves extremely difficult for your loved ones to sort matters out on your behalf, typically requiring them to make a costly, lengthy and complicated application to the Court of Protection for something known as a Deputyship Order. You would have no say over who makes such an application – it could be anybody within your circle of family and friends – and you could consequently end up with somebody being legally appointed to manage your affairs who you may not necessarily have chosen personally.

A good way to view an LPA is therefore as a type of insurance policy. You prepare the LPA when you’re still of sound mind and after you’ve done so you can store the document safely away in the hope that it will never be required. However, once you’ve made the LPA you can enjoy peace of mind that if you do subsequently end up losing mental capacity at some point in the future, people that you have chosen, who you trust, and who know you best, will then have the necessary legal authority to step in and start managing your affairs on your behalf. Furthermore, you will have made it as easy as possible for them to do so.

There are two types of LPA – an LPA for Property and Affairs and an LPA for Health and Welfare.

LPA for Property and Affairs

A Property and Affairs LPA can be used by your Attorney while you still have mental capacity (should you require help or assistance in managing your affairs), or you can stipulate that you only want the LPA to come into force if you ever become mentally incapacitated. A Property and Affairs LPA enables your Attorney to undertake such activities as:

• buying and selling property on your behalf
• investing money
• paying bills
• collecting your benefits or pension
• running your business

LPA for Health and Welfare

A Health and Welfare LPA can only be used by your Attorney once you’ve lost mental capacity. It provides your Attorney with legal authority to make decisions about matters such as:

• where you should live
• what type of medical treatment or nursing care you receive
• what you should eat
• who you should have contact with
• what kind of social activities you should take part in

You can also give special permission to your Attorney to make decisions about life-sustaining treatment on your behalf.

So, should you be taking steps to have LPAs prepared? Well, ultimately, as much as we all hope that we will never lose the capacity to be able to manage our own affairs, nobody knows what’s around the corner, particularly as we get older. Consequently, we would typically advise our clients that it’s sensible for them to at least consider putting LPAs in place.

We would also point out that if you own a business, having an LPA in place can often prove to be extremely useful, as it usually allows your business to continue operating smoothly if you ever become mentally incapacitated. We would suggest you take specialist advice if you own a business.

If you have any queries regarding LPAs, please contact one of our Wills, Probate, Trusts and Tax team today.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.