Lasting Powers of Attorney: common myths

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to choose people – very often members of your family – to make decisions on your behalf should you lose mental capacity. You can decide whether your LPA covers:

• your financial matters;
• your health and wellbeing;
• or both.

Despite their importance, most adults do not have an LPA as they are uncertain whether they need one or what is involved. There are also a great many misconceptions about LPAs. Here are some of the most common:

LPAs are for older people

While older people certainly have a greater risk of losing capacity, most often through forms of dementia, mental impairment through illness can strike at any age. Also, whatever your age, an accident can occur at any time. An LPA gives you the peace of mind that those you trust have the power to step in and deal with your affairs if the worst does happen.

It’s too late, I’ve been diagnosed with dementia

Just because you have been diagnosed with dementia does not mean you have lost mental capacity. Indeed, you are assumed to have mental capacity until it’s proven that you do not. However, mental capacity is a complex subject and I refer you to an earlier article exploring this topic.

As long as it can be shown that you had mental capacity when you signed your LPA, it will be valid.

My family will look after me

Without an LPA in place, your family have no automatic right to make decisions on your behalf. In order to do so, they will have to apply to the Court of Protection for an order to be made appointing one or more deputies. This is a complex, lengthy, and expensive process.

Everything is in joint accounts, so I don’t need a financial affairs LPA

Even if you and your partner hold joint bank accounts, they have no automatic right to take control of your finances should you lose capacity. Although they are likely to have the very best of intentions, the law is designed to protect the vulnerable from fraud and financial misconduct. This means that even if you hold joint bank accounts, if there is no LPA in place, they (or somebody else) will still need to apply to the Court of Protection, even to pay your bills.

I have a Will, so I don’t also need an LPA

Your Will only takes effect upon your death. We recommend that you have both a Will and an LPA. You can appoint the same people to be executors in your Will and attorneys in your LPA if you wish. Alternatively, you can choose different people for each role.