We are often asked about LPA’s (Lasting Power of Attorneys) when a relative has lost the mental capacity to manage their affairs. Unfortunately in this situation, if there is no LPA in place already, an LPA can no longer be granted.
There are ways to enable relatives to assume control of property and financial affairs after this point, which we will explain below.
What is a Lasting Power of Attorney?
Julie Frampton, a Wills & Tax Executive, explains “a Lasting Power of Attorney (an LPA) is an important legal document, allowing you to choose other people to make decisions on your behalf, when you are unable to make them yourself."
Julie says, “The idea is that you can decide in advance how future choices should be made for you and who should make them. You appoint someone that you trust to look after your finances, and if the time comes, that person can make decisions, or follow instructions which you have specified about decisions they should make. They should offer peace of mind for you and your family.”
An LPA can also be particularly useful if you have an equity release plan, as you can ensure that your loved ones will still be able to access any cash reserve that can be withdrawn in the future.
When should an LPA be made?
You can only set up an LPA whilst you retain the mental capacity to do so. In other words, by the time you need one due to an accident, illness or because you are mentally unable, it will usually be too late.
Setting up an LPA is a significant step to ensure that you and your family have peace of mind and protection in the future. It could be argued that it is never too early! If you are aware of health conditions which may take great effect on you in later life, or are aware of a hereditary condition in the family, it is important to make an LPA.
What if I don’t have an LPA, and I get dementia?
If you don't have an LPA in place, your loved ones might not be able to automatically look after your financial affairs.
It is possible to get someone appointed to manage your finances, but it requires an application to the Court of Protection. The Court would appoint someone as a property and financial affairs deputy.
Broadly speaking, a deputy has much the same powers as an attorney and a typical deputyship order from the Court of Protection will provide a relative with sufficient authority to look after the person’s financial affairs, such as being able to access their bank accounts, liaise with utility companies and deal with any property.
Why not just have a Deputy appointed through the Court of Protection?
This can be a lengthy, stressful and costly process for the family. It may also be something that they have to deal with during an awful time, for example, if you have been in an accident or suffered a stroke, when they would rather be spending time with you.
The application process can take between three and six months.
There is a £400 application fee and annual costs. It is also more onerous because a deputy has to produce an annual report of the income and expenditure.
In contrast to an LPA, with a deputyship, the court ultimately decides who should manage the person’s affairs.
Julie concludes, “For these reasons, it does make sense to set up an LPA when you are in your 60s to make life simpler for your children later on.”
Our Wills & Tax Team are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone.
If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 or 01425 610100 and Julie or a member of the team will be happy to chat about your situation and your particular requirements.