I have had many clients in the past year who have started our initial conversations with ‘I think it’s now a good time’. Sadly, the pandemic has focused many of our minds on the fact that our health is precious. We have all seen the stories of people losing their lives to Covid. It has been devastating. We know that sadly a number who have suffered the virus are now dealing with long standing after effects. Much has been written about Kate Garraway’s poor husband’s fight; I have heard her speak about how important a Lasting Power of Attorney (‘LPA’) is and why we should all have one because her husband just cannot (for now) make decisions for himself or manage his own affairs.
A Lasting Power of Attorney enables us, when we are well and of sound mind, to decide who could step in and act for us health wise and financially if we are unable to make decisions for ourselves. When clients make LPAs, it does not mean that they lose control of their own affairs; it’s the converse really. An LPA empowers us to choose our own attorneys. Many choose close friends or even unmarried partners (who otherwise would not be considered ‘next of kin’ for health matters) as attorneys in place of the more ‘traditional’ family members. This reflects their own choice for someone dealing with their health/finance/business interests.
What happens if I don’t have a Lasting Power of Attorney?
Not having access to one’s spousal income or assets whilst they are incapacitated can be extremely stressful; in some cases could lead to major cash flow problems. If you don’t have an LPA then one needs to apply for a Deputyship with the Court of Protection (assuming mental incapacity has been determined medically). This process in itself is not complex, it is very lengthy, expensive and results in no short term solution for being able to act; also only a defined number of parties are able to apply – crucially the incapacitated person is not the one choosing here which is the huge contrast with an LPA.
Lessons to be learned from the pandemic:
- Don’t shy away from difficult conversations. We know that we may become incapacitated at any stage in life. Talk about what you would want to happen with those closest to you. Consider preparing an LPA appointing suitable attorneys.
- Ensure your financial (and health) records and information are in good order and that an attorney would know ‘where to go’ to find out relevant information. Consider preparing a short document highlighting your key matters for an attorney.
- Consider appointing a substitute attorney(s) in case your chosen attorney is unable to act due to their own health, location or mental capacity.
- Make sure that anyone you appoint is confident with numbers/finance or would be confident to seek appropriate advice as required. Trust is the most important asset here.
- All is not lost if an LPA is not prepared. A Court of Protection application would be a more costly and lengthy process. However, preparation and forward planning could help a lot of heartache and ‘aggro’, not to mention cash flow and information access issues (NB. An LPA application takes 6 weeks, however a Deputyship application takes in the region of 6-9 months).