The Court of Protection & deputies

Publish date

14 May 2021

It’s good to talk: the importance of having conversations about LPAs

While the idea that you or a loved one may at some point lose the capacity to make decisions is a daunting one, putting Lasting Powers of Attorney (LPAs) in place should be a key part of planning for your future.

Hopefully you will never need to use them, but in the same way you opt for life insurance or critical illness cover, it can help give you peace of mind to know that everything is in order and trusted attorneys have been chosen by you to act on your behalf if needed.

Two types of LPA were introduced in 2007. A Property and Financial Affairs LPA allows your attorney to deal with your property and finances. This can include selling property, dealing with bank accounts, accessing your financial information and dealing with your tax affairs. This type of LPA can be used even if you still have the capacity to make decisions, if you wish, but only with your authority.

A Health and Welfare LPA allows your attorney to make welfare and health related decisions on your behalf, but only if you no longer have the capacity to make such decisions yourself.  These decisions could include where you should live, decisions regarding medical treatment (including life sustaining treatment) and your day-to-day care. Hospitals and care homes are increasingly asking for Health and Welfare LPAs.

Both types of LPA must be registered with the Office of the Public Guardian before they may be used and this process can take several months to complete. We normally recommend registering the LPAs sooner rather than later.  This will avoid a delay in your attorney being able to act, should the need arise.

When is the best time to put LPAs in place?

Although they are usually associated with later life, LPAs can be put in place at any time during your adult life and there are a number of reasons why deciding to do so earlier rather than later can be beneficial.

Apart from the fact that it is not just advanced age that might prompt  a loss of capacity, it can also be much more straightforward and less emotionally charged to have conversations about LPAs before you or your loved ones become elderly.

From an individual’s point of view, it may be less upsetting to discuss the topic with grown up children while the possibility of losing capacity and requiring support is actually still quite  remote. Many put off having these conversations for fear of upsetting their children, but actually getting everything organised far in advance of when an LPA may be needed can make the process  less emotional and take away any stress that might otherwise be felt.

In the same way, if an adult child is concerned for the future of their parents, urging them to set up LPAs when they are still relatively young and fit can be preferable to waiting until a crisis point is reached, especially as the process of creating and registering LPAs can take a while.

Should you lose capacity, in the absence of a properly appointed attorney, bank accounts and other savings in your name will be frozen.  Authorised access to the funds would only be possible on the appointment of a deputy by the Court of Protection.  This involves a more complicated and usually more expensive procedure, which can be avoided by the appointment of an attorney under a financial LPA. An application for deputyship will  take longer than preparing an LPA and whilst any views that you are able to   express about the appointment of a deputy for you should be taken into account, you would not be in control of exactly who is appointed as deputy (this decision ultimately rests with the Court).

Taking time to talk

Once you have decided to put LPAs in place, it is important to talk to your loved ones about your decision. You may also wish to appoint one or all of your children as your attorneys, although keep in mind that it is a big responsibility; anyone whom you choose to act for you should be trusted by you

Putting LPAs in place can also be a way to open up potentially sensitive discussions around your wishes, especially in terms of your health and welfare were you to lose capacity. For example, you may have particular views when it comes to end of life care.

Although these are emotional topics, there is real merit in having frank and honest conversations with your loved ones, so that they are fully aware of your wishes ahead of time.

If you have any questions about LPAs or any aspect of later life planning, please get in touch with the team

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