When I talk to clients about planning for the future, making a Will is often at the top of their list. And rightly so. A carefully prepared Will helps ensure your wishes are followed and the people you care about are provided for after your death.
But what happens if you need someone to help you during your lifetime?
That is where a Lasting Power of Attorney can be every bit as important.
I regularly help individuals and families put Lasting Powers of Attorney (LPAs) in place across Essex and Suffolk. An LPA allows you to choose people you trust to make certain decisions for you if you are unable to make those decisions yourself.
It is something I encourage people to think about while they are fit, healthy and fully able to make their own choices. You never know when illness, an accident or a change in circumstances might make an LPA invaluable.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document in which you appoint one or more people, known as your attorneys, to make certain decisions on your behalf.
You are known as the donor.
To make an LPA, you must be aged 18 or over and have the mental capacity to make your own decisions at the time it is created.
There are two different types of LPA, and you can choose to make either one or both.
Health and Welfare LPA
A Health and Welfare LPA can give your attorneys authority to make decisions about matters such as:
- your medical care
- where you should live
- your day-to-day care and routine
- life-sustaining treatment, depending on the authority you choose to give them
An important point is that your attorneys can only make Health and Welfare decisions for you when you are unable to make the particular decision yourself.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA deals with your money and property.
Depending on the circumstances and the authority you give them, your attorneys may be able to help with matters such as:
- managing bank and building society accounts
- paying household and other bills
- dealing with pensions and benefits
- managing investments
- dealing with property
- selling your home if necessary
Unlike a Health and Welfare LPA, a registered Property and Financial Affairs LPA can potentially be used while you still have mental capacity, if the document allows this and you give your permission.
This can be useful if, for example, you remain perfectly capable of making decisions but need practical assistance because of illness, mobility problems or time spent abroad.
Why is an LPA just as important as a Will?
A Will and an LPA perform completely different jobs.
Your Will deals with what happens to your estate after your death.
Your LPA helps protect you and your interests during your lifetime.
Making a Will without considering LPAs can therefore leave an important gap in your future planning.
Imagine, for example, that you were involved in an accident or became seriously ill and temporarily or permanently lost the ability to make certain decisions.
Who would deal with your finances?
Who could speak on your behalf about your care?
Who would make sure bills were paid or deal with your bank?
Many people naturally assume that their husband, wife, partner or adult children would simply be able to step in. Unfortunately, having a close family relationship does not automatically give someone the legal authority to manage all of another person’s affairs.
Putting LPAs in place gives you the opportunity to decide in advance who you trust with that responsibility.
What happens if I don’t have a Lasting Power of Attorney?
This is one of the most important reasons I encourage clients not to leave making an LPA until they think they “need” one.
You can only make an LPA while you have the mental capacity to do so.
If you lose capacity without the appropriate arrangements in place, it may be too late to create one.
Depending on what decisions need to be made, someone may then need to apply to the Court of Protection. For ongoing decisions about property and finances, for example, an application may be required for the appointment of a deputy.
That is a very different situation from choosing your own attorneys in advance.
Planning early means you decide who you trust, rather than leaving your family to deal with the situation after a problem has arisen.
When should I make an LPA?
There is a common misconception that LPAs are primarily something for elderly people.
They are not.
I help clients in their 40s and 50s who are making LPAs simply because they want to have sensible arrangements in place.
An LPA can become important following many different circumstances, including a serious accident, stroke or illness. Loss of mental capacity is not necessarily something that happens gradually or only in later life.
For many of my clients, LPAs form part of the same planning conversation as their Wills.
They hope their attorneys will never need to use them. But knowing that the arrangements are there if circumstances change can provide considerable reassurance.
Do I need both types of LPA?
There is no requirement to make both, but they protect you in different ways.
A Property and Financial Affairs LPA cannot simply be used to make Health and Welfare decisions, and vice versa.
That is why I normally discuss both with my clients.
Your circumstances, family and wishes are personal to you, so it is important to understand what each document does before deciding what is appropriate.
I can explain the differences clearly and help you consider how each LPA might work in practice.
Who should I choose as my attorney?
Choosing your attorneys is one of the most important decisions involved in making an LPA.
An attorney must be at least 18 years old. Most importantly, they should be someone you trust to act responsibly and in your best interests.
Depending on your circumstances, you might appoint:
- your spouse or partner
- an adult son or daughter
- another family member
- a trusted friend
- a professional
You can appoint more than one attorney.
If you do, you will also need to decide how you want them to make decisions. This is something worth considering carefully because different arrangements have practical consequences.
I talk clients through these choices rather than treating an LPA as simply a form that needs completing. The aim is to create arrangements that work for you and your family.
When can my attorneys start acting?
This depends on the type of LPA.
A Health and Welfare attorney can only make a decision for you when you do not have the mental capacity to make that particular decision yourself.
Property and Financial Affairs LPAs work differently. Once the LPA is registered, your attorneys may be able to act while you still have capacity if the LPA allows it and you give them permission.
Neither type can be used until it has been registered with the Office of the Public Guardian.
Registration currently takes around 8 to 10 weeks where there are no mistakes in the application, so this is another reason I encourage people to make LPAs well before they are urgently needed.
How much does it cost to register an LPA?
The Office of the Public Guardian currently charges £92 to register each LPA.
If you make both a Health and Welfare LPA and a Property and Financial Affairs LPA, the registration fees are therefore currently £184.
Some people may qualify for a reduction or exemption from the registration fee depending on their financial circumstances.
These are Office of the Public Guardian fees and are separate from any legal fees for professional advice and assistance.
Can I make an LPA myself?
It is possible to make and register an LPA yourself.
However, the fact that you can complete the forms without a solicitor does not necessarily mean that is the right approach for everyone.
An LPA gives another person potentially significant authority over important aspects of your life. There are decisions to make about who you appoint, how multiple attorneys should act, the powers you give them and any instructions or preferences you wish to include.
Mistakes can also delay registration.
My role is not simply to fill in a form. I help you think through the decisions behind it, explain the consequences in plain English and make sure the documents reflect what you actually want.
Why make your Will and LPAs at the same time?
I often discuss Wills and LPAs together because they form two complementary parts of planning for the future.
Your Will answers questions such as:
What should happen to my estate after I die?
Your LPAs answer a different set of questions:
Who do I trust to help me if I cannot make certain decisions during my lifetime?
Looking at both together allows me to understand your family circumstances, concerns and wishes as a whole.
It can also provide valuable continuity. If I have helped you put your plans in place, you and your family know who to contact if circumstances change.
For me, good private client advice is not about producing individual legal documents in isolation. It is about understanding what matters to you and helping you put sensible arrangements in place for yourself and the people you care about.
Why work with me for a Lasting Power of Attorney in Essex?
I have spent more than 25 years helping individuals and families with Wills, LPAs, Probate and other aspects of private client law.
When you instruct me, you deal directly with me throughout.
I am a Consultant Private Client Solicitor practising through Setfords Solicitors, so you benefit from the protection of an SRA-regulated law firm alongside the personal, one-to-one service I believe these matters deserve.
I am also a member of STEP, the Society of Trust and Estate Practitioners, and the Association of Lifetime Lawyers.
Because I have autonomy over my caseload and do not work to traditional billing targets, I can offer a flexible and personal approach.
I work remotely with clients across Essex and Suffolk. Depending on your circumstances, we can arrange to meet at your home or workplace, or speak online if that is more convenient.
For something as personal as deciding who should make important decisions on your behalf, I think having the opportunity to talk things through properly matters.
Frequently Asked Questions About LPAs
Is an LPA only needed if I develop dementia?
No. An LPA may become useful in many different circumstances. An accident, stroke or serious illness could affect your ability to make particular decisions, either temporarily or permanently.
Can my spouse automatically manage my affairs if I lose capacity?
Being married or in a civil partnership does not automatically give your spouse or civil partner authority to make every financial or welfare decision on your behalf.
An LPA allows you to give chosen attorneys legal authority within the scope of the document.
Can I make an LPA after I lose mental capacity?
You must have the mental capacity to make an LPA when you create it. If capacity has already been lost, other legal routes may need to be considered, potentially involving the Court of Protection.
This is why making an LPA in advance is so important.
Can I appoint more than one attorney?
Yes. You can appoint more than one attorney and decide how you want them to make decisions. It is important to think carefully about how the arrangement would work in practice.
Does making an LPA mean I lose control?
No. Making an LPA does not in itself mean handing over control of your life.
A Health and Welfare LPA can only be used for a decision when you cannot make that decision yourself.
A Property and Financial Affairs LPA may be used while you still have capacity if it has been registered, the document permits this and you give your permission.
How long does an LPA take to register?
The Office of the Public Guardian currently advises that registration takes around 8 to 10 weeks if there are no mistakes in the application.
That is why it is much better to regard an LPA as advance planning rather than something to arrange once a crisis has already happened.
Thinking About Making a Lasting Power of Attorney in Essex?
Making an LPA is ultimately about retaining choice.
You choose who you trust. You have the opportunity to discuss your wishes. And you can put arrangements in place while those decisions remain entirely yours to make.
If you live in Dedham, Colchester or elsewhere in Essex or Suffolk and would like to discuss making a Lasting Power of Attorney, please get in touch.
Whether you are starting from scratch or already have a Will and would now like to complete your future planning, I am happy to answer your questions and explain your options.
We can arrange an initial conversation and take things at a pace that feels comfortable for you.