LPA: What Problems Arise if you Don’t Have One?

A Lasting Power of Attorney is an important document you may never have considered when it comes to future planning.

It can make a tangible difference if circumstances change and you are affected by an accident or serious illness.

But what if you don’t have one? What problems can arise? One of our Wills, Probate, and Trust team, Alex, tells us more:

Who needs a Lasting Power of Attorney (LPA)?

An accident or illness can strike anyone at any age, often without warning. For this reason, an LPA is an important legal document for anyone to put in place if you want peace of mind.

By legally naming that particular person you trust, who will have the legal authority to look after your affairs and make decisions on your behalf should you lose capacity, you have certainty and reassurance during a naturally difficult and uncertain time.

Many people think if something happens to them in the future and they can’t make their own decisions about issues such as finances, property, healthcare or personal care, for example, their family or friends can simply take over. It isn’t true!

Just as you need to make a Will to determine what will happen to your assets when you die, you need an LPA in place if you want to make the decision yourself as to what will happen to you if you lose mental capacity.

There are two types of power of attorney to deal with different aspects of your life – ‘property and affairs‘ and ‘personal welfare‘.

An LPA – What if you don’t have one? (Property and Financial Affairs)

In terms of a property and financial affairs LPA, the following issues could arise if you don’t have one and lose mental capacity:

• No access to your family member/friend’s bank accounts to help them with banking or paying bills. Without the LPA, these companies will not speak to someone ‘calling on your behalf’.
• Account and policy providers, even for simple utility bills, are unlikely to communicate with you without the LPA.
• In some cases, the local council will make decisions for you instead – including where you will live and what healthcare you may receive. This can be especially traumatic for the family, which is exactly why making a Lasting Power of Attorney is so important.
• Your relatives/friends could disagree on what is the best decision for you, and this could cause conflict.
• You could be susceptible to financial abuse, and people you don’t necessarily trust could ‘help themselves’ to your money, whilst claiming to be acting ‘in your best interests’.

An LPA – What if you don’t have one? (Health and Welfare)

A different version of an LPA can focus on health and welfare decisions. If you don’t have one and your life leads to a scenario whereby you are unable to make decisions by yourself due to a lack of capacity, issues can come up. These scenarios include:

• You lose capacity quickly and your family do not know your wishes.
• Your doctors need to give life-sustaining treatment, but your family don’t know your wishes. For example, would you want to be kept alive on ventilators, be resuscitated or fed through a tube?
• Because of a health condition, you need to pay for a Care Package to help you or move into a care home. Your family don’t know what to do and it’s a big decision for them to make on your behalf.

When should an LPA be put in place?

You can only put an LPA in place whilst you can understand the nature and effect of the document.

If you wait until it's needed, it will be too late for you to put an LPA in place; that’s why we advise you do it sooner, rather than later.

What if I don’t have an LPA and I lose capacity? What can be done?

Your family must apply to the Court of Protection to appoint a Deputy. You will have no say in who they appoint; it could end up being the local council.

You have no say in the scope of power granted to your Deputy and this is a slow and very expensive process, costing thousands of pounds.

You may not be able to sell even jointly held assets until the court appoints a Deputy.

What about power of attorney when someone dies?

You cannot apply for power of attorney after someone’s death – instead, the instructions of the Will take precedence.

Why should I use a professional to draft my LPA?

An LPA is a legally binding document which is more complex that you might expect, and it's easy to get this wrong.

A poorly drafted LPA could be found to be invalid or ineffective when it's needed, meaning it's essentially worthless.

That is why we always recommend getting your LPA professionally drafted.

Our friendly team can help you put the right protection in place, for you, your family and your assets.

Book in a call today to discuss.

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