What happens if I don’t make a Lasting Power of Attorney?

Jun 8, 2021 | Estate Planning, LPA

We all hope that we will keep our current mental capacity for as long as possible; however, one fact about getting older is that our mental capacity goes into decline over time, which means that we can start to become forgetful. 

This may not seem like too much of a problem if the impact is irregular and minor, but what if things are happening more regularly and to a higher degree of severity?

Some people may lose their mental capacity altogether, which means that they cannot make their own decisions or communicate these to other people.

 There are also situations in which you could lose mental capacity suddenly, for example as a result of an accident or sudden illness.

If this happens to you, you need to have someone who can make those vital decisions on your behalf, which a Lasting Power of Attorney will appoint.  But, what happens if you don’t have someone in mind and you end up unable to make those decisions for yourself?

 

Won’t my partner just get Power of Attorney?

 

One of the most common misconceptions about the Lasting Power of Attorney is that your partner or husband/wife will just get it automatically. However, this is not the case. Whilst they will be able to help with many things in your life, they will not be able to deal with your pensions or bank accounts, and they will not be able to make any decisions that relate to your health or care arrangements.

 

So, what can I do?

 

A Lasting Power of Attorney (LPA) allows you to plan ahead by choosing one or more persons you trust or a professional such as a Trust Corporation (your Attorney’s) to make decisions and take appropriate actions on your behalf regarding your health & welfare and property & financial affairs.

Lasting Powers of Attorney have to be drafted whilst you have mental capacity. By having a Lasting Power of Attorney in place it will be YOU who decides who will deal with your affairs if you lose capacity and you will have more control over when your attorney will take over your affairs.

 

What happens if I have already lost capacity?

If you are no longer able to make your own decisions because you have lost mental capacity and you don’t have a Lasting Power of Attorney, you will need to apply to the Court of Protection. The Court of Protection will decide whether or not you have enough mental capacity to make key decisions.

They will then make an order and appoint a deputy who will be able to make the decisions on your behalf. Applying for a deputyship order is expensive and may result in the wrong person being your deputy, for example, a professional person that you do not know, an estranged child or a spouse that you may have separated with.  If a professional is appointed, they will normally charge for their services.

The application is decided by the Court of Protection and generally takes 6-9 months. During this time your accounts can not be accessed by your loved ones to pay your liabilities.

 

What will a deputy do?

The deputy has a similar role to someone who acts as a Power of Attorney. There are two types, property and financial affairs and also personal welfare. It is more often the case that someone will be appointed as the first deputy. However, in rare circumstances, a deputy can be assigned to take care of the decisions related to your care and your medical treatment.

The court will decide what powers the people have and how much they can do. It is always anticipated that whoever they choose will act in good faith and choose what you would want (or what would be suitable for you) rather than acting in a way that will benefit themselves.

As you can see, it makes sense to make a Lasting Power of Attorney. It allows you to nominate a trusted relative or friend to look after your affairs in situations where you may no longer be able to make decisions for yourself. Sure, it might take time to do, but we can promise you that you will be glad that you made an effort and protected yourself, your health and wellbeing and of course, those around you too.

A Lasting Power of Attorney has far reaching powers, so it is incredibly important to seek professional advice when setting one up.  We offer a free initial consultation to discuss your requirements, so please get in touch today if you would like further information.

Or, if you’d rather arrange a face to face appointment:

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