It’s Not Just About Old Age: Why LPAs Matter at Any Stage of Life
Lasting Powers of Attorney are often thought of as something to arrange in retirement. In reality, accidents and illness can affect anyone, at any age, and without an LPA, the people closest to you may be unable to help when you need them most.
Most people associate a Lasting Power of Attorney (LPA) with later life, dementia or care homes. It is easy to assume that an LPA is something to think about “one day”, once retirement is in sight.
But loss of mental capacity is not only a feature of old age. A serious road accident, a stroke, a brain injury, a sudden illness or a mental health crisis can affect a person of any age. When that happens, the question of who can manage their finances and make decisions about their care arises immediately, and the answer often comes as a shock...
What is a Lasting Power of Attorney?
An LPA is a legal document that allows you, the “donor”, to appoint one or more people you trust, your “attorneys”, to make decisions on your behalf if you become unable to make them yourself.
There are two types:
- Property and Financial Affairs LPA, covering matters such as bank accounts, bills, benefits, property and investments. With your permission, this can be used while you still have capacity as well as if you lose it.
- Health and Welfare LPA, covering decisions about medical treatment, care, where you live and daily routine. This can only be used once you have lost capacity to make the relevant decision.
You can make one or both. Many people appoint the same attorneys for each, but you do not have to.
An LPA must be registered with the Office of the Public Guardian before it can be used. Registration takes a number of weeks, so it is not something that can be arranged at the last minute.
The myth of next of kin: who can make decisions without an LPA?
One of the most common misconceptions is that a spouse, partner or adult child can automatically step in and manage a loved one’s affairs. In law, “next of kin” carries no such authority.
Without an LPA, if you lose capacity:
- Your partner cannot access accounts in your sole name, even to pay the mortgage or household bills
- Jointly held accounts may be restricted by the bank
- Family members have no legal right to make decisions about your medical treatment or care, although they may be consulted
- Your family would need to apply to the Court of Protection to be appointed as your deputy
A deputyship application is significantly more expensive and time-consuming than making an LPA, can take many months, involves ongoing supervision and annual fees, and means that a court, rather than you, decides who takes on the role. Deputyships for health and welfare decisions are rarely granted at all.
Why younger adults should consider a Lasting Power of Attorney
Just as there are good reasons to make a Will before turning 40, there are several stages of life at which an LPA is particularly worth considering:
- Turning 18: parents lose the automatic right to make decisions for their children when they reach adulthood. For young adults with additional needs, and indeed for any young adult, an LPA can allow parents to continue to help if needed
- Buying a home or taking on a mortgage: financial commitments increase, and someone needs to be able to keep things running if you cannot
- Starting a family: particularly where a partner would struggle to manage the household finances alone while dealing with a crisis
- Running a business: a business LPA can allow a trusted person to make decisions about the business, keeping it operating if the owner is incapacitated. It sits naturally alongside the wider succession planning for business and agricultural assets that every owner should have in place
- Working or travelling abroad: accidents overseas can create complex practical difficulties for families at home, which is why we recommend getting your affairs in order before you go away
- Cohabiting couples: unmarried partners have even fewer rights than spouses and can find themselves entirely excluded from decisions
Making an LPA for the sake of your family
It is worth remembering that an LPA is as much for the benefit of your loved ones as for you. In the aftermath of an accident or a sudden diagnosis, the last thing a family needs is a legal battle for the right to pay the bills or speak to doctors.
An LPA gives your chosen attorneys clear authority to act, reduces delay and stress, and ensures that decisions are made by people who know your wishes.
Choosing your attorneys for an LPA
Your attorneys should be people you trust completely, who are capable of managing money or making difficult decisions, and who are likely to be available when needed. You can appoint more than one attorney and decide whether they must act jointly, or can act jointly and separately. You can also name replacement attorneys in case an original attorney can no longer act.
Many people include guidance or preferences in their LPA, for example, about how their finances should be managed or what kind of care they would prefer, and it is possible to include binding instructions where appropriate. A solicitor can help ensure these are drafted in a way that works in practice.
Making an LPA is straightforward, provided it is done properly
LPAs can be made online or on paper, and the process is not complicated for most people. However, LPAs are frequently rejected by the Office of the Public Guardian because of errors in signing, witnessing or completion. Mistakes discovered after the donor has lost capacity cannot be corrected.
Taking professional advice helps to ensure that the document is valid, that the powers and any instructions reflect what you actually want and that the right people have been appointed in the right way. It is also worth reviewing an existing LPA from time to time, particularly after a marriage, divorce, house move or the death of an attorney; our guide to spring cleaning your Will, LPAs and key documents explains what to check.
Thinking about making an LPA? Speak to our solicitors in Eastbourne, Bexhill-on-Sea and Hastings
Whatever your age, our Lasting Power of Attorney solicitors can talk you through the options, prepare Property and Financial Affairs and Health and Welfare LPAs tailored to your circumstances and deal with registration on your behalf, giving you, and the people who matter to you, peace of mind for the future. We offer fixed fees for LPAs, published on our website, and our Private Client team includes members of STEP, the Society of Trust and Estate Practitioners.
To get started, call us on 01323 644222, email enquiries@stephenrimmer.com or book a free initial 30-minute consultation at our Eastbourne, Bexhill-on-Sea or Hastings offices.
Disclaimer: The content of this website blog is for general awareness and insight. This is not legal or professional advice and readers should not act upon the information provided, they should seek professional advice based on their own particular circumstances. The law may have changed since this article was published.
FAQs: Lasting Powers of Attorney
Am I too young to need an LPA?
No. Anyone aged 18 or over with mental capacity can make an LPA, and loss of capacity through accident or illness can happen at any age.
Can my spouse or partner make decisions for me without an LPA?
Not automatically. Without an LPA, your family would usually need to apply to the Court of Protection for a deputyship order, which is slower, more expensive and gives them less control.
Can I still make my own decisions after I have made an LPA?
Yes. Making an LPA does not remove your ability to make decisions. A Health and Welfare LPA can only be used once you have lost capacity, and a Property and Financial Affairs LPA is only used with your consent while you still have capacity.
Can I change or cancel an LPA?
Yes, provided you still have mental capacity. You can revoke an LPA at any time by notifying the Office of the Public Guardian, and you can make a new one if your circumstances change.