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Dying Matter Awareness Week - Lasting Powers of Attorney

View profile for Helen Newson
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Dying Matters is a growing coalition of individuals and organisations across the country who aim to help people talk more openly about dying, death and bereavement, and make plans for the end of life.  The theme of this year’s awareness week (13th to 19th May) is ‘Are We Ready?’

Many people don't want to think about dying. I have lost count of the number of times over the years that a client has said to me that they have been putting off making a will because they don't want to think about it, almost as if they think talking about it will make it happen!

There are several ways in which a solicitor can assist in the planning process, many of which centre on the financial side of planning, but this can also cover healthcare decisions and the practicalities of dealing with an estate.

In a series of three articles, I will outline the ways we can help. The first is on lasting powers of attorney which give you more control over what happens to you if you have an accident or an illness and cannot make your own decisions…

Lasting Power of Attorney

A lasting power of attorney (LPA) is a document in which you authorise one or more other people to make decisions for you.  There are two types of LPA.  One deals with financial and property matters, the other with health and welfare.  If you or a loved one have difficulties in managing decisions towards the end of life, an LPA allows someone you trust to make decisions on your behalf.

Finance and Property

Many people will make a property and financial affairs LPA in case they are ever unable to deal with financial matters themselves but hope it will never be needed. The attorneys will be able to deal with day-to-day matters such as running a bank account and paying bills, but the power would also extend to more significant transactions, such as selling a property, or dealing with an investment portfolio.  Certain matters are excluded from the power, such as inheritance tax planning for which the consent of the court is required, if the person who has given the power has lost the ability to manage their own affairs. 

A finance and property LPA can be used before the person loses capacity, on the basis the attorneys are acting on their authority.  This is useful if you become physically unable to manage, for example if you cannot sign, or see to read documents.

Health & Welfare

A health and welfare LPA allows you to appoint an attorney to make decisions on your behalf about your personal healthcare. It can only be used when you lack the capacity to make these decisions for yourself, for example if you are unconscious or because of the onset of a condition such as dementia.

You can decide to give your attorney the power to make decisions about any or all your health and welfare matters. This could involve some significant decisions, such as giving or refusing consent to particular types of healthcare, including medical treatment decisions or whether you continue to live in your own home, perhaps with help and support from social services, or whether residential care would be more appropriate for you.

There is a specific section in this type of LPA that allows you to confirm whether you wish your attorneys to be able to make decisions about end-of-life care. A health and welfare LPA can work alongside a living will or advance directive, in which you state what your wishes are about end-of-life care.

What do I need to think about?

The most important consideration is who your attorneys should be. Usually they would be your closest family, but this is not always the case.  It is possible for solicitors or other professionals to act as finance attorneys if you do not have any family ready, willing and able to act for you. This does have costs implications which you will need to discuss with your adviser.

Much of the time the attorneys under both types of power are the same people, but this does not have to be the case. You may for example wish certain family members to handle your finances if they are used to dealing with financial paperwork, and have the time to do so, but you may wish others to be formally involved in welfare decisions.

You can provide guidance for your attorneys or stipulate conditions as to how they should act in making certain decisions, for example, whether they should consult anyone else, or whether certain powers are restricted.  While this may sound sensible in theory, in practice this needs handling with care and so you should seek advice before going ahead.

It is possible to create your own LPA online, but be aware this is a system that produces a document for you and gives some pointers. It will not take into account your individual circumstances. It is always sensible to speak to an experienced professional for advice as to how to set up the power and how it would work in practice. This is particularly important if the person making the LPA is unwell and their understanding might be in any way impaired, or if there is any difficulty in the family.

You do need to be aware that before it can be used, the LPA must be formally registered, and this procedure typically takes six to eight weeks. It is not something therefore that can be put into effect quickly and so it is best to consider this well in advance.

For more information about LPAs please contact our Wills & Estate Planning team on 01522 512123 (Lincoln) or 01636 673743 (Newark).

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