The importance of creating a Lasting Power of Attorney

A Lasting Power of Attorney (LPA) is a legal document that allows you (the ‘donor’) to select one or more persons (known as ‘attorneys’) to assist you when making decisions or making decisions on your behalf.

There are a few reasons why you may need help making decisions or for decisions to be made on your behalf;

• You may be temporarily indisposed as a result of an illness or accident. In some situations, you may be indisposed for other reasons, including being overseas.
• You may indefinitely be unable to make your own decisions, whether this is a result of an unexpected accident or health crisis.

It is a common belief that one needs to be ‘elderly’ in order to have an LPA. However, this is not true. 

In fact, the only two requirements for creating an LPA are that;

1. You must be the age of 18 or over; and
2. You must have mental capacity

If you do not appoint an attorney before you lose mental capacity, your relatives will have to endure the expensive and long-winded process via the Court of Protection to appoint a deputy. Deputies and attorneys have the same power, except they are appointed at different times – attorneys being appointed whilst a person has mental capacity, and deputies being appointed after the donor has lost mental capacity.

Furthermore, whilst the Court of Protection will do what they can to follow what they think your wishes would be, there is no guarantee that the deputy appointed would be the person you may have chosen.

By creating an LPA, you are actively choosing someone you trust and know would carry out your wishes well.

Why should you act now?

Sometimes, by the time the need for an LPA is discussed with family and friends, it is too late. The Office for Public Guardian is currently taking up to four months to register and confirm an appointment. The LPA cannot be used until it is registered. If you have decided who you would like to make decisions on your behalf, you should act now.

Perhaps the most vital reason for acting now is that mental incapacity and age are sometimes not related. Accidents, illnesses, addictions, and mental health problems can occur at any age.

If an accident occurs leaving you incapacitated, whether temporary or permanent, and you are left without an LPA set up, you, your family, partners and employees will potentially face serious difficulties; your financial and welfare affairs will effectively be in limbo until such time as the Court of Protection appoints a deputy.

Useful to know

The legal and registration costs of creating an LPA are much lower than applying for a deputyship. On average, the professional fees for assisting with a deputy application are four times higher than assisting with the creation of an LPA.  Additionally, you can register an LPA from as little as £82.  The court fee for applying for a deputy to be appointed is currently £400 with annual supervision fees payable each year thereafter.

How long does it take for the Court of Protection to appoint a deputy?

The process of the Court of Protection appointing a deputy can take up to six months. The applicant has an obligation to notify certain groups of people, including relatives relating to the person lacking capacity.

Once the application has been submitted, relevant people notified have a right to object to the deputyship application. If this is the case, the application will become disputed, which can take many more months to settle.

If an LPA is made and created, it can simply be filed away, ready to be used if needed. Whilst one does always have the option of appointing a deputy through the Court of Protection, it is important to remember that if this is the case;

• The Court will do their best to appoint a deputy who they believe you would want; though this is never a guarantee.
• The process of appointing a deputy via the Court is a slow and expensive option which could cause your loved ones unnecessary stress and anxiety.

This article was written by Donna Mahoney, a Senior Manager in our Tax team. Donna can provide you with advice and support for creating a Power of Attorney, writing a will or dealing with probate. If you would like to get in touch with Donna regarding anything mentioned in this blog please submit your queries using the form below.