When is the best time to make a lasting power of attorney?

26 January 2022

The best time to make a lasting power of attorney (LPA) is when you have the mental capacity to do so. 

The risk of losing mental capacity – the ability to make our own decisions – increases as we get older. According to the Altzheimer’s Society, 1.6 million people are likely to be living with dementia by 2040.  

However, an LPA is not just for the elderly. Accidents and illness mean that losing mental capacity can happen to us at any time in our lives, regardless of age. 

Why make an LPA now?

Having a lasting power of attorney in place means you can choose who you would like to make decisions on your behalf if there comes a time when you cannot. 

Many people believe their spouse will be able to make decisions for them if they are unable to do so. However, this is not the case. Without an LPA your loved ones must apply to the Court of Protection for permission to be able to manage your affairs. This can be costly, time-consuming, and stressful for them. It also means day-to-day decisions relating to your health and finances are likely to be delayed.

Here are examples of situations where an LPA may be used:

  • If you are in hospital for a while, you could need somebody to make decisions for you on a temporary basis. For example, your bills may need to be paid.
  • You have been diagnosed with a medical condition or you have had an accident that affects your mental capacity. In these circumstances you may need somebody to make decisions for you in the long-term.

The person you choose to make decisions on your behalf is called your ‘attorney’.

What are the types of power of attorney?

There are three types of power of attorney: ordinary power of attorney, enduring power of attorney and lasting power of attorney (LPA).

Ordinary power of attorney

If you need somebody to make decisions for you on a temporary basis, such as when you are abroad, in hospital or unable to leave the house, you could arrange an ordinary power of attorney.

This power of attorney is only valid while you have mental capacity.

Enduring power of attorney 

Enduring power of attorney was replaced with ‘lasting power of attorney’ in October 2007. If an enduring power of attorney was made before then it is still valid.

Lasting power of attorney (LPA)

There are two types of LPA:

  • Health and welfare LPA
  • Property and financial affairs LPA

You might decide to put one type of LPA in place or both. You can choose the same person to act as your attorney for both types of LPA, or choose different people. 

What is a health and welfare LPA?

A health and welfare LPA only comes into effect if you lose mental capacity.

With this LPA your attorney can make decisions about your day-to-day life including bills, shopping, where you live and the type of medical treatment you receive. This includes life-sustaining treatment.

What is a property and financial affairs LPA?

Unlike a health and welfare LPA, a property and financial affairs LPA can be used the moment it is registered, with your permission.

With a property and financial affairs LPA your attorney can make decisions about all aspects of your finances including paying bills, investing money on your behalf, and even selling your house.

Who can act as your attorney?

Anybody over the age of 18 who has not been declared bankrupt can act as your attorney. It can be a relative, friend or carer. Alternatively, you could choose a professional attorney such as a solicitor. 

Acting as an attorney carries a great deal of responsibility. It is very important to select somebody you trust implicitly and who you know manages their own affairs well. Make sure the person understands the responsibility involved and that they are comfortable to act on your behalf if needed.

You can choose more than one attorney to act for you ‘jointly’ or ‘jointly and severally’. If you would like your attorneys to act ‘jointly’ they must consult with each other on every decision. This could make day-to-day life challenging.

If your attorneys can act ‘jointly and severally’ they have the freedom to choose which decisions to make independently and which together. You could make it clear that they must consult with each other over major decisions relating to investments or property.

What safeguards are in place to protect you?

When you choose an attorney (or attorneys) you are placing them in a position of power. Your greatest safeguard is to choose someone you trust implicitly, but there are also legal safeguards to protect you. 

Your LPA must be signed by a ‘certificate provider’ who confirms that you:

  • Understand what you are doing
  • Have not been placed under pressure to create an LPA
  • Have made the LPA of your own free will. 

The certificate provider cannot be your attorney. They must be over 18 years old and somebody who has known you for at least two years. A doctor or a solicitor can also be a certificate provider.

Your LPA must also be signed by a witness. The witness can be your certificate provider, but they do not have to be. They must be over 18 years old and not your attorney.

As an additional safeguard you can name other trusted people on your LPA who must be notified before your LPA is registered (see below). These people will then be able to raise objections if they are worried.

When is an LPA legally valid?

An LPA is only legally valid when it is registered with the Office of the Public Guardian (OPA). It can take up to 20 weeks to process an LPA, so it is advisable to register it as soon as it is ready. 

Our solicitors at Adroit can register your LPA for you. We will make sure there are no errors. Mistakes can mean a new LPA is required which is time-consuming and costly.

How do you go about creating an LPA?

Our friendly solicitors at Adroit can guide you through the process of creating an LPA. We can help you to choose the best LPA for you by discussing your options with you. We can also talk about an attorney’s duties so you can choose the best person (or people) to act on your behalf.

Any ambiguities in the wording of your LPA could leave it open to challenge later. We will make sure your LPA is clearly expressed and contains the right level of detail. We will help you to consider a range of scenarios your attorney could face, giving you the peace of mind that your wishes will be followed in any situation.

We believe that every adult should have a lasting power of attorney to protect themselves and their loved ones. The best time to make a lasting power of attorney is now. 

Find out more

To start your lasting power of attorney or find out how an LPA can benefit you and your family, please call 033 355 2964 or email info@adroitlaw.test

If you are already a customer of Adroit, please visit your Adroit dedicated microsite for more information.