Lasting Powers of Attorney: 5 common misconceptions and what you need to know

Understanding Lasting Powers of Attorney: 5 common misconceptions and separating fact from fiction

What are Lasting Powers of Attorney?

Lasting Powers of Attorney (LPAs) are legal documents that enable you to appoint the people that you trust to make decisions on your behalf, should you ever need them to do so; once appointed, these people are called your Attorneys. There are two different types of LPA:
1. Property and Financial affairs: your appointed Attorneys are able to deal your finances. This could cover everything from getting some money from the bank for you if you are unable to do it yourself, to assisting in the sale of your property if you need them to do so.
2. Health and Welfare: Your appointed Attorneys can make decisions about your health, including life-saving treatment, where you do not have the capacity to make these decisions yourself.

Despite their importance, LPAs are often misunderstood, and misconceptions about LPAs often deter people from putting them in place. Below are the 5 most common misconceptions and the truth behind them.

- Misconception 1: "My Attorneys will be able to use the LPAs to change my Will"
It is a common belief that LPAs can be used by your Attorneys to change the provisions of your Will. This is not the case; the LPA documents do not give your Attorneys authority to change your Will; any changes that you wish to make to your Will must come from you directly.
- Misconception 2: "LPAs can only be used by my Attorneys when I have lost capacity."
Whilst the Health and Welfare LPA can only be used where you do not have the mental capacity to make decisions about treatment yourself, the Property and Financial Affairs LPA can be set up so that your Attorneys can use it as soon as it is registered with the Office of the Public Guardian. This means that it can be used while you still have capacity if you wish for your Attorneys to use it. This is helpful in situations where, for example, you are unable to access your bank and you need to withdraw some money; your attorneys are able to do this for you with your permission.
- Misconception 3: "Making an LPA means I will lose control over my finances or personal affairs."
Some people avoid creating LPAs because they worry that it means that they are handing over immediate control of their finances or personal choices. In actual fact, when you create an LPA you retain full authority and control over your affairs as long as you have mental capacity. Your Attorneys will only step in either once you have lost capacity to make decisions for yourself, or in the limited circumstances in which you can grant them authority to use the LPA while you still have capacity.
You not only choose who your Attorneys are, but can also include preferences and instructions as to how they should or must act.
- Misconception 4: "My spouse or relatives can automatically make decisions for me if I can’t."
Many think that once you have lost mental capacity, your spouse or next of kin automatically has the legal authority to make decisions for you; however this is not the case. Without an LPA, no one has the automatic right to act on your behalf for your financial affairs. Without an LPA, your spouse or relatives would need to apply to the Court of Protection for a financial deputyship, which can be a slow and expensive process.
- Misconception 5: "LPAs can be set up later on when I need to use them."
Many people believe that LPAs can be set up at any point in time, and will put off making them until then, however it is good to keep in mind that LPAs can only be prepared if you have the mental capacity to do so, and can understand and make decisions for yourself. LPAs create a sense of security for both you and your family for the future, so that you can be sure that the people you trust are appointed to act for you if the worst happens.

Key takeaways

• LPAs can be made by anyone over the age of 18 who has mental capacity, and do not have to be used right away.
• You remain in control until you lose capacity. Even once you have lost capacity, there are safeguards in place in order for your best interests to be kept at the centre of the decision-making process of your attorneys.
• There are two types of LPA, each serving different purposes, and both can be tailored to your preferences.
• Without an LPA, even close family members have no legal authority to act for you; creating LPAs are the only way to ensure.

Hay & Kilner are here to help you through the process of creating Lasting Powers of Attorney. LPAs come with a lot of nuances and can be difficult to get right. This provides a very brief guide to LPAs, but please do get in touch with a member of our Wills, Trusts & Estates Team to get started on planning for your future and making more informed decisions.