Here at Timbrell Law, we believe in planning for the worst to secure the best possible outcome for you and your family. Accordingly, we have set out to expose the most common misconceptions surrounding Lasting Powers of Attorney (“LPAs”) that stop people from planning ahead.
Misconception 1 – LPAs are only for the elderly
People usually identify being unable to manage their affairs with diseases like dementia and the onset of old age. However, there are other ways to lose mental capacity. What happens if you have an accident? Similarly, who will speak for you if you are unconscious or in a coma?
Using an LPA to plan for the unknown is as important for young families as it is for those in retirement.
Misconception 2 – If you have limited assets you do not need a Property and Financial Affairs LPA
You don’t need to own property or have significant savings to prepare an LPA. Almost every aspect of day to day life is facilitated by a financial decision or payment.
Your attorneys may need to make decisions about paying for accommodation, household expenses and holidays for you. They may also need to claim benefits and allowances on your behalf.
Thinking further ahead, if you later receive an inheritance, having an LPA in place will ensure that there is someone to manage the inherited funds if you lose capacity.
Misconception 3 – Jointly held assets are not affected by mental incapacity
This is a common misconception, especially where bank accounts are concerned.
It is normal for high street banks to freeze all withdrawals from a joint account upon discovering that one of the account holders has lost mental capacity. If you share an account with your spouse, they will lose access to the account unless they can prove they have authority to act for you.
The consequences of not having someone who can act immediately can be disastrous. Your spouse may be unable to meet their needs during this period or pay for your expenses.
Misconception 4 – Your Will also covers the position if you lose mental capacity
Your LPA and your Will never operate at the same time. This is because your Will only comes into force on your death.
Misconception 5 – Next of kin can make health decision without an LPA
Next of kin is a title usually given to your nearest blood relative. The title does not confer any legal authority to make health or medical decisions for an incapacitated adult.
If you appoint a health and welfare attorney, they will be able to talk to doctors and other medical professionals as if they were you. They will be able to step into your shoes and make decisions about your treatment, where you live and the support and help you receive.
Without an LPA, decisions about your health will be made by the medical professionals or local authority involved in your care. They are bound by law to make whatever decision they consider to be in your best interests; even if this overrides the wishes of your family.
Misconception 6 – There is no oversight of LPAs
An LPA must be registered with the Office of the Public Guardian (“OPG”) before it can be used. This means that there is a public record of the appointments you have made in your LPA.
The OPG is responsible for maintaining this record and investigating reports of abuse by attorneys. If the OPG suspect financial abuse, they will take steps to apply to the Court of Protection to cancel or revoke the LPA to prevent further harm.
If you would like to discuss preparing a Lasting Power of Attorney, please click here for our contact details. We would be happy to help.
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