26 Mar Lasting Power of Attorney Mythbusters with Leanna Haskell
Most of us understand the importance of making a Will, but a worrying number of us don’t understand the importance of making a Lasting Power of Attorney (LPA).
An LPA is a legal document that allows people you trust to make decisions on your behalf, in the event you are no longer able to. There are two types of LPA – one for Health and Welfare and one for Property and Financial Affairs.
Leanna Haskell is a Chartered Legal Executive working from the Gillingham and Shaftesbury offices of Rutters Solicitors. Leanna faces a lot of misconceptions surrounding Lasting Powers of Attorney, below are some of the most frequent ones and the truth behind them.
“I don’t need an LPA – LPA’s are for ‘old’ people”
Memory loss can be a natural part of getting older, but for some, memory loss may be a sign of dementia. Whilst dementia is more commonly associated with people over the age of 60, there are estimated to be at least 42,000 younger people with dementia in the UK. Although dementia is the most talked about cause of mental incapacity; strokes, mental health issues, head injuries and brain tumours can also cause a lack of mental capacity and can happen to any of us, at any time – regardless of our age.
Everyone should have an LPA in place to protect them in case the unexpected happens.
“My loved one has been diagnosed with dementia – it’s too late for an LPA.”
In order to make an LPA, the donor (person it involves) must have mental capacity. However, a diagnosis of dementia alone does not necessarily mean that it is too late to make an LPA. Mental capacity can fluctuate with time – for example, some people may have better capacity in the morning than in the afternoon.
In these circumstances, we would typically advise for a mental health specialist to carry out an assessment on mental capacity in order to ensure that the donor can make an LPA.
“I have a third party mandate set up – I don’t need an LPA
A third party mandate allows someone else the authority to access your bank account on your behalf. This is fine to use whilst you, as the account holder, still has mental capacity. However, if mental capacity is lost the authority to continue acting under the mandate ends. If you have lost mental capacity and the person you entrusted to have access to your account continues to act under the third party mandate, this could be considered fraud.
If you formally appoint someone to act as your attorney under a registered LPA, then that person will have the authority to deal with your affairs even after you have lost mental capacity.
“I have an Enduring Power of Attorney in place. I don’t need an LPA”
If you have an Enduring Power of Attorney (EPA) in place, it will still be valid. However, it can only grant your attorney’s the authority to make decisions regarding your finances. They will not be able to make decisions involving your health or care. What’s more, an EPA will need to be registered as soon as mental capacity is in doubt which can take several weeks, leaving you in a vulnerable position in the meantime.