What you need to know about lasting power of attorney

Young daughter becomes LPA for mother with help from Rogers & Norton Solicitors in Norwich

A lasting power of attorney can ensure those you love and trust the most - your spouse or children - can make financial or welfare decisions on your behalf and take care of you if needed. - Credit: Getty Images/iStockphoto

The importance of establishing lasting powers of attorney (LPA) cannot be stressed enough, according to Kelly Grealis, solicitor, and Laura Rumsey, director of legal firm Rogers and Norton.

Laura and Kelly, whose offices are based in Norwich and Attleborough, specialise in wills, LPAs, probate work and working for clients who have lost mental capacity. Here they outline the vital reasons for entering into an LPA:

Q: What is lasting power of attorney?

A: Lasting power of attorney is about setting out what you would like to happen during your lifetime and appointing people you trust to deal with your affairs and make decisions for you.

If you consider establishing lasting powers of attorney in good time, then it means you are in control of what happens instead of an independent body or someone you wouldn't choose in your family – an estranged relative or an ex-spouse – making decisions for you.

Q: When should I consider setting up a lasting power of attorney?

Laura Rumsey, director of legal firm Rogers and Norton in Norwich and Attleborough.

Laura Rumsey, director of legal firm Rogers and Norton. - Credit: Rogers and Norton

A: As soon as possible. Many people consider doing them when they do their wills and tend to appoint very similar people in both documents – their spouse or their children, for example.

People often think about doing them as they approach old age, but it is important to understand that there is no age at which it is right to get this done – and the sooner, the better. Covid-19 has highlighted that any of us can become unwell at any age and might need assistance from our families or someone we trust.

Q: What are the different types of lasting power of attorney?

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A: There are two types of LPA:

  • One for property and finance - this can be used to give someone else control of things like your day-to-day banking, utility bills or selling your property to release funds for your care. You can decide whether the attorney will be able to help you as soon as the document is registered or when you have lost mental capacity.
  • The other LPA is for health and welfare - this covers any health, care or welfare decisions and can be anything from deciding what your daily diet should be to whether you need home care, will benefit from moving to a care home or require end-of-life treatment. You can decide whether your attorney will make an end-of-life decision for you or the doctors. A lot of people find comfort in knowing their family members will be responsible for that decision.

Q: But can’t a spouse do all those things anyway?

A: No. It is very important to understand that a spouse does not automatically have control of your finances – or even joint finances – and cannot always make decisions about your care unless they have lasting power of attorney. The rules today are very stringent: without the right legal authority, marriage really doesn’t count for anything.

Broadcaster Kate Garraway has made a point about this. She had nothing in place for her husband, who suffered severe complications from coronavirus, and she wanted to release money from their property to carry out renovations that would enable him to return to living at home. However, as he couldn't sign off on this, she was unable to withdraw the funds quickly, despite it being in his best interests.

Kelly Grealis, solicitor specialising in LPAs at legal firm Rogers and Norton in Norwich

Kelly Grealis, solicitor at legal firm Rogers and Norton. - Credit: Rogers and Norton

We assume that when people are married that they can do things for each other but that’s not necessarily the case. Even if you have a joint bank account, if one person becomes incapacitated, then some banks will stop the whole account. The same goes for trying to sell a property that is jointly owned.

Q: What happens if I don’t have lasting power of attorney in place?

A: It can be very difficult for your loved ones to access the funds they need to make sure you are cared for properly or for them to make decisions about your care. If you don’t make a lasting power of attorney and then lose mental capacity, the only option for them is going down the route of the Court of Protection.

At the moment that takes up to a year and costs around £2,000, double what it would cost a couple to make all four lasting powers of attorney. We understand that people worry about the cost – and LPAs are generally more expensive than making a will – but it is a one-off payment and it could end up saving a lot of money and stress in the long run.

Q: Is it complicated to apply for lasting power of attorney?

A: No, but we do always suggest taking professional advice as it is important to ensure the documents are legal and correct. It currently takes around 20 weeks to register the LPA so if, for example, you have made an error in signing it, you might not find out for two or three months and then you have to resolve the error and send it back again.

Seeking legal advice can also help ensure you appoint the right individuals for the role, they will be managing your finances and health after all. There are also restrictions on some people being your attorney or witness, and, again, a professional can advise you on this. 

Quite often people leave making an LPA to the last minute or only when they really need it, for example, when being diagnosed with a serious illness. At that point waiting 20 weeks can be distressing and feel like a very long wait. This is why setting an LPA up in advance is worthwhile, and then it’s already in place, no matter what may occur.

Establishing lasting power of attorney is about having peace of mind – it is like an insurance policy, hopefully, you won’t need it but if you do, then it is there – and it is important to ensure that if you do need it, everything is exactly as you want it to be.

For more information, visit rogers-norton.co.uk, email lr@rogers-norton.co.uk or call 01603 675645.

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