Making a Lasting Power of Attorney (LPA) should be as important as making a will, a leading lawyer has warned.
Despite growing awareness – the number of LPAs registered surpassed one million for the first time last year – too many people are putting it off until it’s too late.
With an ageing population and soaring rates of conditions like dementia, Jenny Walsh, a wills, LPA and estate specialist at Osbornes Law, warns that appointing an attorney to make decisions on your behalf should be a top priority.
“Deciding who will manage your affairs becomes a lot more complicated, time-consuming and problematic if you don’t have an LPA,” she says.
“Despite this, we still regularly see clients whose loved ones have sadly lost capacity, with no provision in place and leaving them to pick up the pieces.”
What does an LPA do?
An LPA is a legal document that determines who will make important decisions for you if you are no longer able to do so.
There are two types of LPA – one for health and welfare, and one for property and financial affairs – which must be applied for, and registered with, the Office of the Public Guardian (OPG).
In contrast, people who don’t have an LPA and lose capacity are left having to rely on a ‘deputy’ – usually a family member, friend or professional such as a lawyer – who must apply to and be approved by the Court of Protection. There are, however, disadvantages to this.
- It takes longer
“There’s a lot of paperwork to fill in for the Court of Protection,” Jenny says.
“Firstly, a capacity assessment must be carried out and a form completed by your doctor. Secondly, the deputy must record all the details of your individual circumstances including any income, assets and liabilities.
“Whilst the application process can now be done online, it can still take several months and may require a court hearing if anyone objects to who you have chosen.”
- It’s more expensive
It costs £82 to register an LPA compared to deputies who must pay a £408 fee just to apply. In addition, there is an annual supervision fee for every year they’re in the role. It is usual for a lawyer to assist with the application, which will also incur an additional cost.
Like LPAs, there are two types of deputy – property and financial affairs, and personal welfare – and if you apply for both then you can double all of the above.
It also costs a further £494 on top if your case is listed for a court hearing.
- You may not get the outcome you want
Jenny says: “Whereas you can choose who to appoint as an attorney when you make an LPA, deciding on a deputy is a matter for the court.
“Property and financial affairs are more straightforward but, in the case of personal welfare, the court is typically reluctant to appoint a permanent deputy to this role and in most cases prefers that all parties involved work together to reach decisions about the person’s care.
“There are exceptions to this, but it tends to be in cases where younger people have been born without or lost capacity. For example, if parents have been making ongoing decisions about a child’s care and the child then reaches adulthood but still needs that support.”
Being a deputy is also a much more onerous process than being appointed an attorney as the court supervises individuals much more closely than the OPG and requires them to submit comprehensive accounts of all expenditure on an annual basis.
Why wait?
While most people make a will in mid-life – after significant events such as having children or buying property, for example – LPAs typically still aren’t considered until much further down the line.
Awareness is growing, but not fast enough.
Jenny adds: “Caring for a loved one who has lost capacity is tough enough and the last thing anyone wants is for what is often a family member to be left with even more to deal with.
“That’s why making an LPA is crucial. It ensures not only that you can reduce that burden, but also that you appoint a trusted attorney to make important decisions for you rather than leaving it in the hands of the court and potentially a deputy you may not have personally chosen.”
