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Wills, Probate & Trust

Lasting Powers of Attorney. Here is Why You Need One!

Friday, May 3, 2024

Miss Law, a friend of Phil and Sam, is single and has no children or close family. She has made Lasting Powers of Attorney to authorise her close friend to make decisions for her if she is unable to make them for herself in the future. Sam and Phil think this is a great idea for Miss Law, but don’t think they need Lasting Powers of Attorney themselves as they assume that, because they are now married, they can automatically make decisions for one another in the future. Sam and Phil mentioned this to their solicitor, however, who advised them that this is not true and explained why they do still need Lasting Powers of Attorney.

Without Lasting Powers of Attorney (LPAs) in place, no one has the legal authority to make decisions for someone else- not even their spouse or next of kin. This means, regardless of your marital status or other family circumstances, LPAs are extremely important.

There are two types of LPA, one authorising someone or some people (your Attorney(s)) to make decisions about your property and finances and one authorising your Attorneys to make decisions about your health and welfare. Property and financial decisions include paying bills, buying and selling property and claiming benefits. Health and welfare decisions include consenting or declining medical treatment and deciding personal choices such as where you live, what you eat, what activities you participate in, etc.

Sam and Phil therefore now understand the need for LPAs, despite them being married, but they don’t think this is something they need at this stage. They are both in good physical and mental health and suggest they consider LPAs if/when their health deteriorates.

Their solicitor, however, advises that the LPAs be prepared now, whilst they don’t need to be used, so they are ready to be used if/when the need arises. This is because LPAs take several months to be set up and so cannot be arranged in an emergency. Sam and Phil must also have the necessary mental capacity to enter into the LPAs and so waiting until health deteriorates may mean it is too late.

Sam and Phil are now recognising the importance of LPAs, but they don’t want to relinquish control just yet. Their solicitor explains to them that, by making LPAs, they are actually retaining control, as they are deciding who will make decisions for them if they are not able to do so in the future. Their solicitor explains that should capacity be lost without LPAs being in place, an application to the Court of Protection to appoint a Deputy will be required. This a far more lengthy, costly and onerous process for all involved. In addition, whilst Sam and Phil retain mental capacity, their property and financial LPAs can only be used with their consent. Their health and welfare LPAs can also only be used if and when they lost capacity. Sam and Phil are reassured by this and recognise that they are not, in fact, giving up any control.

Sam and Phil have therefore decided to prepare LPAs for both their property and financial decisions and health and welfare decisions and are relieved to have protected themselves should they be unable to make decisions for themselves in the future.

If you or anyone you know would like any information or advice, please contact the Wills, Probate and Trusts Department on 0191 232 8451 to arrange a no obligation appointment.

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