Protecting Your Interests: Why a Lasting Power of Attorney is Essential

When carrying out estate planning, we often focus on what happens after we pass away. However, it’s equally important to think about protecting yourself and your family while you’re still alive. In this blog, we’re looking at a lasting power of attorney (LPA), which lets someone you trust make decisions on your behalf should you no longer have the mental capacity to make them yourself.

In the UK, there are two types of LPAs: a financial one, which covers your property and finances, and a health and welfare LPA, which covers how you should be cared for and medical decisions.

Karen’s story

My first experience with this was when my mother-in-law decided that she needed an LPA if the time came when she couldn’t make decisions for herself.  She was well into her eighties, very switched on and living alone, so my husband and his sister went through the LPA process, which involved completing lots of paperwork, and became her attorneys.

This didn’t mean that they took over the running of her affairs – she was still more than capable of doing that – but it did mean that if she were no longer able, they would have the ability legally to enact a power of attorney and make decisions about her care and her finances.

I thought at the time that this was a process for older persons, but when we spoke to a care home manager, she suggested my husband and I should also have LPAs for each other. We were both working at the time, so we filed it under ‘something to look at in the future’–when you are busy with life, lots of things fall into this category! It was only many years later when we watched the Martin Lewis Money Show and heard his advice that an LPA was at least as important, if not more important than a will, that I decided to look into it.

As with all our blogs, they are for information purposes only and do not provide legal advice. However, as I went through this process myself, I thought it would be helpful to share my experience so that others could consider how they wanted to approach it.

DIY or using a solicitor to handle the lasting Power of Attorney process

Many solicitors will handle the process for you, and if you shop around, you can get a good price. However, you can also set up an LPA yourself, and I did it online for my husband and me.  All the details can be found on the Gov.uk website, where you need to set up an account.

Even if you use a solicitor to do this for you, there is still a need for you to decide the participants in your LPA, and it is useful to make these decisions before you look for a solicitor or start the process.

The following is what we did following the guidance on the government website:

Participants

1.     We decided to appoint each other as attorneys, so if either of us were incapable of making decisions, the other one could enact the LPA, access income and bank accounts and make decisions about personal care and finances.

2.     We also decided to appoint our two children as backup attorneys in case we were both incapacitated or one of us died.

3.     The next important participant(s) is/are people to notify, for example, a family member. If the LPA is enacted, the Office of the Public Guardian will write to the person/people in this category. The people then have three weeks to object if they believe that pressure is being applied or that fraud has occurred.  We both chose my brother as the person to notify.

4.     The final participant is the certificate provider.  This is someone who has known the donor (that is you - the person who is the subject of the LPA) for at least two years and can verify that the donor understands what they are doing and is doing it freely. It can be a friend, neighbour or former colleague, or it can be someone with ‘relevant professional skills’ such as a GP, health professional or solicitor. We used a friend we had both known for 20 years.

Signing everything off

You then need to complete the LPA forms online, print them, and have all the parties sign the paperwork before sending it to the Office of the Public Guardian. Some of the signatures must be witnessed, so I found it helpful to write a list of who signs what, in what order and where the signatures are needed. This helped to ensure that I didn’t make any mistakes, which would have meant amending the paperwork, printing a new set off and starting again with the signature process.

We then sent the signed paperwork for four LPAs (one each for Health and Welfare and one each for Property and Financial Affairs, along with a cheque for £328, which covered the current cost of £82 per LPA. You can also pay online or by phone using a debit or credit card.

Completing the process

The Office of the Public Guardian then writes to the attorney(s), backup attorney(s) and person/people to notify for each LPA.  This allows these participants to object to the LPA being registered – they have three weeks to do this.

About four weeks later, we received the registered LPAs, and the attorneys and backup attorneys received appointment letters with forms detailing how to be an attorney.

The final step is to go online and activate your account so you can use the online service if needed.

Other useful information

The guidance tells you about the decision-making powers of the attorney(s) and also that you can specify your instructions and preferences to your attorney(s). For example, not wanting your house sold unless a doctor has stated you will never be able to live in it or your preference to have professional carers rather than family members look after you.

The government website provides very detailed advice for all participants, helping you, as a donor, explain to everyone you want to be involved in your LPA, why you have chosen them and how the process works.

The whole process took two months from start to finish. The online process was pretty straightforward, and all the information you input is saved in your account, meaning you can partially complete the process and go back to it later so that you don’t have to do it all in one go.

Finally

Estate planning is for everyone (not just for wealthy people) because:

• it helps to protect the people you love most by being clear about your wishes

• it enables them to look after your affairs for you should you become incapable of doing this yourself

• it enables them to give instructions on your health and care so that they are satisfied your care is as you and they would wish

• it allows them to access funds so that they can look after you and your assets.

Take the time now to set up your lasting Power of Attorney, protect yourself and have the right people looking after you and your affairs if you can’t do it yourself.