Contrary to popular belief, your next of kin (your spouse and children) do not automatically assume the legal power to manage your affairs without a Lasting Power of Attorney (LPA). In other words, they cannot legally access your bank accounts, pay the mortgage, make important decisions about your care, to name but a few when you become incapacitated due to old age, an accident or illness. This is why it’s paramount to understand the importance of an LPA and in this article, we look to discuss the impact if you choose to write one yourself.
A Lasting Power of Attorney (LPA) is a legal document which stipulates who should act on your behalf and manage your affairs when you aren’t able to. The person undertaking the responsible is referred to as your ‘attorney’ and must be over 18 years old.
In the UK, anyone above 18 can create an LPA at any given time, though at the time of creation, you must have the mental capacity to understand the nature and effect of the document you’re creating. Most people, however, don’t think about an LPA until they are older or when they have been diagnosed with a degenerative illness that can impact their mental capacity and the decision-making process. At such time, they can choose to create one or both types of LPA – one LPA covering your health and welfare, and another LPA managing your financial and property affairs.
You can write your own LPA, get it signed and witnessed before making the application to the Office of the Public Guardian, or you can do it online via the gov.uk website which requires you to set-up an account first. However, without the guidance of a professional solicitor, you may struggle with an extensive amount of complex legal jargon and risk making costly mistakes.
Also, bear in mind that if you have been diagnosed with a degenerative illness like dementia, time is of the essence and any mistakes and delays during your LPA application process can further compound the stress you and your family are facing.
In the unfortunate event that your healthcare provider decides that you aren’t mentally fit to make your own LPA, then your next of kin will need to apply for a Deputyship Order, which allows a member of your family to be appointed by the Court of Protection to make decisions on your behalf. This step is likely to prolong the agony for everyone involved as it takes more time and costs more money, while no one can make decisions for you in the meantime. Therefore, don’t leave it too late to make an LPA, start the conversations now and plan ahead instead.
According to the Office of Public Guardian, about 15% of the LPAs they receive contain errors with some common mistakes include: using the wrong form, being vague on life-sustaining treatment, making the unlawful compulsory, not signing the form in proper order and missing pages, to name but a few.
Some people also get confused when it comes to appointing their attorneys to act jointly or jointly and severally; so here’s a summary:
Acting jointly may seem like a good idea but in reality, it means no one can act on behalf of you in the event that one of the attorneys passes. If you put in a provision that one of the attorneys can still act if the other dies, then you risk invalidating your LPA.
Acting jointly and severally is preferred as it mitigates the risk of losing one of the attorneys. However, there are still pitfalls you need to watch out. For example, your LPA may not be accepted if it contains seemingly harmless provisions like you want to split your business and personal affairs strictly between two attorneys.
Suffice to say, there are drawbacks if you choose to create your own LPA which is why for peace of mind, our clients come to us and allow us to assist them in the LPA process.
Your future depends on the attorneys stipulated in your LPA to make important decisions for you, so don’t leave it to chance that you may be able to write your own and get it right the first time around. Employing the help of a specialist solicitor will make the process of writing and registering your LPA immensely easier.
To find out more about our LPA service, contact our experienced team of solicitors on 0208 520 4555 or via our Contact Form.
This post is not legal advice and should not replace professional advice tailored to your specific circumstances. It is intended to provide information of general interest about current legal issues.
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