02 September 2020
Benefits of creating a Lasting Power of Attorney
Dementia is on the rise. What can you do reduce the risk and its impact?
NHS research has shown that one in 14 people over 65 are living with dementia. This increases dramatically to one in 6 for those over 80 years of age. The NHS estimate that in just four years’ time, there will be more than 1 million people living with dementia in the UK.
The Alzheimer’s Society encourages maintaining a healthy and active lifestyle to reduce the risk of dementia, measures which is supported by the BMJ after research found there is a strong link between good heart health and a lower risk of dementia in later life.
However, the number of people living with dementia is still increasing because people are living longer, so it may be prudent to plan ahead and think about who could look after your affairs if you lose the capacity to do so. One way of doing this is through Lasting Powers of Attorney, which allow you to choose someone who you trust, to act on your behalf and make financial or welfare decisions for you.
Lucy Wood, wills, trusts and probate partner at B P Collins offers a reminder of the benefits of creating Lasting Powers of Attorney (LPA), which allows you to choose someone who you trust, to act on your behalf and make financial or welfare decisions if you are unable to do so.
If you lose capacity to manage your own affairs, by developing dementia for example, and you do not have an LPA (or an Enduring Power of Attorney) in place, someone will need to obtain a Court of Protection Order (COPO) to be appointed as your “Deputy” (the Court of Protection’s version of an attorney). The person appointed as Deputy might not be the incapacitated person’s first choice, in fact they could be someone with no family connections at all.
The Deputy application is a long and expensive process, there will also be ongoing fees paid to the Court, for example the annual insurance bond, and there are extensive reporting obligations to the Court on an ongoing basis.
The Deputy can only do what they have applied for under the COPO and may need to apply to court again for other decisions, so the process is more rigid, and it can take much longer for decisions to be reached.
It may work in some situations, but can add stress and burden on the Deputy, which could be avoided by creating an LPA.
How can a lawyer help?
1. Although LPAs can be created without one, a lawyer can fully explain the pros and cons and what an LPA means for the donor.
2. They can make sure that the donor has capacity to understand the process and that there is no undue influence involved in the making of the LPA.
3. Lawyers are good sounding boards when the client is deciding who to appoint and how they can act.
4. Lawyers can add an extra safeguard by storing the LPA until needed, as it is a live document once registered with the Office of Public Guardian.
5. Lawyers can be appointed as attorneys too, in more complex situations.
6. All advice can be conducted over a video or phone call to help you create an LPA.
The Office of the Public Guardian launched a ‘Use a Lasting Power of Attorney’ tool in July 2020, which has been developed to assist those acting as an attorney to get in touch with organisations like banks and healthcare providers more easily. It replaces the current paper-based process, which can hold things up.
Critically, the new tool supports existing checks, including confirming whether someone has the legal right to act as an attorney and the powers they’re eligible for, which helps to protect the elderly and vulnerable from exploitation from a lasting power of attorney. The new system can viewed at https://www.gov.uk/government/organisations/office-of-the-public-guardian