There has been a lot of media attention given to Lasting Powers of Attorney (LPA) in the past few days and debate about whether they are a good thing or an invitation for financial abuse. Since retired senior Court of Protection judge Denzil Lush made the controversial comment that he would never create a Power of Attorney, the limelight has been on the risks associated with allowing another person to have carte blance access to your finances when you are no longer able to manage them yourself.
It is important though that in the current hullabaloo the many benefits of LPAs are not forgotten. Many of us are lucky enough to be able to say that we have family and friends who we would trust with our lives and our livelihoods. If we don't (quite literally) put our money where our mouths are, however, then we may wind up in a position where it is not those people who we trust that end up managing our affairs. Without an LPA, once a person loses capacity, the Court of Protection will become involved and they will have the final say about who manages the incapcitated person's affairs. This may not be the same choice that the person in question would have made, had they been able to.
LPAs can allow for a seamless transition between a person managing their own affairs and somebody else taking over. As, by its very nature, an LPA is a document that is prepared before it is strictly needed, it can be ready and waiting to be used as soon as is necessary, as opposed to the alternative of having to make a complex application to a Court with formal procedures and notice periods which can, at times, mean that a person's finances have to remain static for a number of months whilst the Court of Protection appoint somebody to act. Practically this can cause no end of problems with family members having to do a whip round to continue to pay for utilities, mortgages or care home fees, for example.
LPAs also allow the flexibility of having somebody help you to manage your affairs even whilst you still have capacity. As a person gets older, they may be in a position where they are getting a little forgetful or confused, but not to the extent where it could be said that they do not have capacity. There is an option in LPAs that allows for attorneys to assist a person whilst they still have capacity. This means that a person can retain their independence but with a little help from their attorney when needed.
It would be naive to assert that there are no risks associated with LPAs - there are plenty of horror stories and statistics to show that sometimes things can go wrong. By seeking professional advice when creating an LPA, however, it may be that these risks can be mitigated. As in the below article, instructing a solicitor to assist can ensure that there is an independent person associated with the creation of the document who can advise you on potential issues and the best way to avoid these.
LPAs, like anything, have to be prepared carefully and correctly to be of proper use. If they are done this way they can give peace of mind that the right person will be able to take care of your affairs in the right way if and when you are no longer able to.
We all hope that we will not become incapable of looking after our own financial and health affairs. But we would rather have someone we love and trust to make the decisions than a secretive court. The fee for an LPA was £82. We could have done it online, but we all chose to spend extra for a solicitor so there could be no dispute that we were doing so while of sound mind and willingly. Solicitors’ fees are much less expensive than the initial and annual charges of the Court of Protection. Also, by involving a professional, there is someone outside the family who knows who we have appointed as attorneys. Once you are no longer capable of making decisions, you cannot appoint who will look after your affairs.