Top five myths and facts surrounding Lasting Power of Attorney
When faced with the reality of a loved one losing mental capacity, a family may have to cope with a complex legal situation and a long and expensive court process. The key to avoiding such stress and difficulty is to plan ahead for such an eventuality by taking out a Lasting Power of Attorney.
What is Lasting Power of Attorney (LPA)?
Many people have heard of a Lasting Power of Attorney (previously an Enduring Power of Attorney), but wrongly believe it is something to be considered only when mental incapacity sets in.
Here we discuss some of the main myths and facts surrounding mental incapacity and Lasting Power of Attorney.
1. Mental Incapacity
Myth: Mental incapacity is something that only effects people in later life, with illnesses such as Alzheimer’s, so I don’t need to do anything just yet.
Fact: Accident or illness can strike at any time, often without warning. The consequences of failing to plan can be significant, so why leave something so important to chance?
2. Accident or Illness
Myth: If I suffer an accident or illness, my spouse or children will automatically be able to take over the running of my affairs as my next of kin.
Fact: Your spouse or children have no automatic right to act on your behalf. Without an existing LPA being in place, they will be required to apply to the Court of Protection to be appointed as your Deputy – a long, complex, costly and intrusive process.
3. Bank accounts
Myth: I can simply add my spouse or children to my bank accounts, as a joint account holder would just carry on as normal in the event of my mental incapacity.
Fact: Banks are guided by the British Bankers’ Association to freeze both solely and jointly held accounts where one account holder loses mental capacity (they may allow pre-authorised payments).
4. Choosing the people to whom you grant LPA
Myth: When creating a Lasting Power of Attorney, it is best to appoint my spouse and children to act together jointly.
Fact: Many poorly advised individuals have fallen into this trap. Appointing family jointly means they must act together in all matters, rendering the Lasting Power of Attorney useless when one of the appointed family members is unable to act – incapacity or death is not an excuse!
5. The authority of your next of kin
Myth: If anything happens to me and a decision needs to be made about life sustaining treatment, the Doctor will automatically follow the wishes of my next of kin.
Fact: Only by having an existing Lasting Power of Attorney can you give the people you trust the right to make choices about your health and welfare, including the ability to refuse life sustaining treatment if you wish.
A Lasting Power of Attorney is often likened to an insurance policy – you hope you’ll never need it, but your family will be very grateful for your foresight if you do. It’s the only way to ensure you have your say about who you trust to manage your affairs, how to ensure your health is managed as you wish and to ensure that affairs are made as simple as possible for your loved ones.
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