Written by: Jason

Category: Uncategorised

Published: 5th June 2012

Guardian Online – Why a Lasting Power of Attorney is not just for the elderly

A lasting power of attorney (LPA) gives another individual the legal authority to make financial or health and welfare decisions on your behalf should you lose the capacity to do so. It’s not just for the elderly; younger people may become incapacitated through accident or illness.

Without an LPA in place, relatives may face long delays and expenses in applying to the court of protection to get access and take control of your assets and finances.

There are two types of LPA: one that can cover decisions about money matters, known as a property and financial affairs LPA, and one that can cover decisions about healthcare, known as a personal welfare LPA.

A person administering a property and financial affairs LPA can make decision on things such as buying and selling your property, dealing with your bills, running your bank accounts and investing your money. If they have a personal welfare LPA, they can generally make decisions about where you should live, how you should be treated medically, what you should eat and who you should have contact with.

You may choose anyone you trust as your attorney, provided they are over 18, not bankrupt and they are willing to take on the role, which is a serious responsibility. It is their duty to make all decisions in your best interests and they must follow certain principles set out in the Mental Capacity Act aimed at making sure you are encouraged to make your own decisions where possible. As a donor, you can restrict or specify the types of decisions the attorney can make, or you can allow them to make all decisions on your behalf.

So should you do it yourself or seek advice? Lucy Malenczuk, policy adviser on financial services for Age UK, says: “We would encourage people to read through the forms and guidance first and, if they want to set up something fairly simple and feel confident about their decisions and filling out the forms, then they don’t have to have legal advice. But it’s important to remember that an LPA is a serious, powerful document so, if in doubt, they may want to take legal advice.”

Julia Abrey, head of elder law at law firm Withers, agrees that people who want to set up a straightforward LPA can do it themselves, although for something more complex, she recommends seeking advice.

“Suppose you want to put in particular restrictions on what the attorney can do,” she says. “This can be quite complicated to draft correctly and the risk is (if it is drafted incorrectly) the Office of the Public Guardian may sever a restriction or, in extreme cases, render the power of attorney invalid.”

Natalie Walker, head of wills at Co-operative Legal Services, says that, without legal advice, there is the danger of making errors of judgment in drafting the form that can make life unintentionally difficult for your attorneys in the future, or which can cause the OPG to reject it.