Why make a Lasting Power of Attorney

With the latest census revealing almost one in five people in England and Wales are aged 65 and over, it’s clear we’re living much longer. It’s worth considering the benefits of putting a Lasting Power of Attorney (LPA) in place for if you ever become unable to make your own decisions and manage your affairs.  

An LPA is a legal document which allows you to appoint one or more people to make decisions on your behalf, should you lose capacity in the future. This could happen if you fall ill or suffer an injury.  

If you don’t sign an LPA before losing capacity, your next of kin would have to apply to the Court of Protection for a deputyship order. This can be a complex, expensive and time-consuming process. LPAs can minimise distress for loved ones, as well as ensuring your wishes are carried out. In some circumstances, a deputyship (see below) may be preferable due to the additional safeguards they offer.

There are two types of LPA: one for management of your finances and property, and another for health and welfare decisions. It’s useful to note that you can choose to appoint different people to act under the powers. People running their own business or in a partnership may need to create separate LPAs for their business and personal finances.

Clients sometimes ask, why can’t I just do this myself? To which we reply: you can but be aware of the risks. SFE lawyers add value by advising on safeguarding clauses to protect you if ever needed. This is when you’re likely to be in a vulnerable position and could be at risk of being abused or exploited. They are specialised in this area of law and have years of experience helping people plan for later life.

Often close family members may be appointed as an attorney. In these circumstances incorporating appropriate and measured safeguarding clauses ensures they will act in your best interests. Unfortunately, for many of the cases that reach court, the evidence suggests that it can be family members who abuse their position of trust. Thankfully, these cases are rare, and with good advice and a well-drafted LPA this can be avoided.

In addition to advising you on safeguarding clauses, your SFE solicitor will be able to certify in the LPA, that you understand the document you are signing, the scope of the authority granted to your attorney and that no pressure or undue influence was brought to bear on you. They will also ensure there is nothing else which would prevent the LPA being valid.

LPAs are powerful documents. Your attorney can do just about everything you could do when dealing with your money and property. Therefore, it’s worth spending time considering who is the right person/s to act as your attorney/s, their values and beliefs, and what skills they have that ensure they do a good job.

The authority granted to your attorney/s will continue until your death – when it’s automatically terminated by operation of law, or until you revoke the power – which can only be done by deed, and is subject to your having mental capacity to do so.

Remember, an LPA is a deed and so cannot be amended after it has been validated by the registration process with the OPG. To change an LPA, you would have to revoke the power and start again. This will add to the costs and so it’s important to get it right first time.

Speak with a local SFE lawyer about preparing an LPA today – click here

James McMullan

Partner and the head of Private Client at London law firm, RIAA Barker Gillette (UK) LLP.

James started his career as a family lawyer. Over the years, his practice has grown to encompass all aspects of private client law, such as elderly client matters (including mental capacity issues), estate planning, lasting powers of attorney, probate and contentious probate, tax, trusts and wills. James prides himself on spending sufficient time with his clients at the outset to fully understand their position, needs and objectives to ensure they reach their goals. James adheres to the ACTAPS code and is an SFE member and a full member of the Society of Trust & Estate Practitioners (STEP).

Firm 
RIAA Barker Gillette is a full-service London Law Firm with offices in Central and North London. We believe every client is unique and tailor our services to meet your needs. We pride ourselves on our approachability and the accessibility of our partners. From corporate law to more sensitive family difficulties, our experienced and efficient team are on hand to advise and help you. Our practice encompasses company and commercial, dispute resolution, employment, family, private client, regulatory and real estate services.

The RIAA Barker Gillette Global Alliance offers capabilities in six countries and ten cities from New York to Beijing. Find out how we can help you. Contact us today on +44 (0)20 7636 0555 or [email protected]