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What happens if there’s no Lasting Power of Attorney?

If you were to lose mental capacity, Lasting Powers of Attorney give those you trust the authority to make decisions on your behalf. However, what happens if there’s no Lasting Power of Attorney? Without these in place, you won’t have control over important life choices relating to your finances, property, health and welfare.



A Lasting Power of Attorney (LPA) is a legal document that comes into force if you were to lose mental capacity. Whether it’s through an accident or a health condition, anyone at any age can lose mental capacity. In medical terms, this could be caused by dementia, stroke, heart attack, or another life-altering condition. You can also use it to appoint an attorney to help you with a complex matter when you still have capacity.


Lack of financial control without a Lasting Power Of Attorney


Our team regularly advises people on the problems that can arise when there’s no Lasting Powers of Attorney in place. Below is an example of a real-life situation:


[Q] We were contacted by a client whose wife had dementia and had gone into residential care at a cost of £2,000 per week. Although she had plenty of funds to cover the fees, she did not have a Lasting Power of Attorney in place so no-one could access her funds. Luckily, her husband had sufficient funds in his own right to pay the fees until such time as a Deputyship Order was obtained. This took 12 months, resulting in £100k of costs!

 

There is a costly and time-consuming process when you don’t have Lasting Powers of Attorneys (LPAs) and lose mental capacity. Your partner or family would need to apply to the Court of Protection, who would appoint a ‘deputy’ to take on this responsibility. Your loved ones might not have a say in who the Court appoints as a deputy. This can often cause additional stress during a worrisome time when they are already trying to manage your care.

 

During the waiting period for the Deputyship Order to be obtained, your bank accounts could be frozen. As a result, your partner or family might not be able to access your money to make important bill payments. They might need to sell your home to pay for your medical treatment or social care. This would not be possible until a deputy had been appointed.

 

The deputy would also manage decisions relating to your health and social care. Problems can arise when your family do not agree with the deputy regarding decisions made about your finances or welfare. You also wouldn’t have control over your daily routines, care home choices or medical treatment.


How does a Lasting Power of Attorney work?


By appointing ‘attorneys’ to act on your behalf, you will have some reassurance that important decisions are within your control if you lost mental capacity. Attorneys can be anyone you trust, such as a partner, family member or friend. As well as giving these people the ability to control your finances, they can also manage your health and social care.

 

There are two types of Lasting Power of Attorney (LPA):

 

  • Property and Financial Affairs LPAThis type of LPA gives your appointed attorney the legal right to manage your money. It enables them to access your bank accounts, bills, savings and investments. A Property and Financial Affairs LPA also gives your attorney the ability to sell your home or make repairs. If required, you can restrict certain decisions when you apply for this LPA.

  • Health and Welfare LPA This type of LPA gives your appointed attorney the legal right to make decisions about your health and social care. It allows them to choose a residential care home or nursing home for your needs. A Health and Welfare LPA also ensures your attorney is kept informed and has a say about your medical treatment.

 

As these LPAs cover different matters, our solicitors always recommend arranging both types. It’s worth noting that you can use LPAs when you still have capacity, for example, if you needed support with certain decisions.


Arranging Lasting Powers of Attorney


By getting Lasting Powers of Attorney (LPAs) in place, you will have peace of mind over your financial affairs and healthcare, should the worst happen. Without these in place, you won’t have control over important decisions if you lost capacity.


At Salusbury, Harding & Barlow, our specialist Wills, Trusts and Probate solicitors can arrange both types of LPAs. We will ask you to choose your attorney(s) and we recommend asking more than one person, if possible. Your chosen attorneys must be people that you trust to make important decisions on your behalf. Alternatively, you can register LPAs directly with the Office of the Public Guardian, which usually takes up to 20 weeks.


If you need advice or to arrange Lasting Powers of Attorney, please get in touch or email: lbacon@shbsolicitors.co.uk to arrange a face-to-face or telephone appointment.

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