Bob Cullen is a published author with articles in publications aimed at professional advisors. He has almost 30 years experience providing Wills, Trusts and Power of Attorney both directly to the public and also through senior financial professionals. Here you will find explanations and links to further authoritative information including the publication “Lasting Power of Attorney: What It Is And How It Works (in plain English)” Please watch the video for some essential information.
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So what exactly is a Lasting Power of Attorney and should you have one?
A Lasting Power of Attorney (LPA) allows you to choose people to act in your best interests if you are unable to act for yourself. If you do not have a Lasting Power of Attorney and you lose mental capacity the following are just a selection of potential issues:
1. Joint bank account – Without a Lasting Power of Attorney the bank has the ability to freeze access to the account even when this is a joint account with a spouse or partner.
2. Bills cannot be paid unless someone pays on your behalf but they cannot be reimbursed from your money.
3. No one will be able to access or manage your bank accounts or investments if you have any. This can lead to losses which could have been avoided.
4. No one can claim benefits on your behalf
5. If you own a business or buy-to-let properties the potential losses are greater.
If you wait until you need one it is too late. You cannot make a Lasting Power of Attorney if you have lost capacity and nobody can make one for you. Only you can do it.
If someone loses capacity and there is no Lasting Power of Attorney the only alternative is for someone to apply to the Court of Protection for a Deputyship. Martin Lewis, the consumer champion, talks about that in a video on the Lasting Power of Attorney page of our website and almost begs people not to let that happen. He is absolutely right to do so. To watch the video go to: https://www.professionalwillservices.co.uk/lasting-power-of-attorney-in-frome-south-west/ and scroll down the page.
There are two types of Lasting Power of Attorney (LPA) in England and Wales, one for Property & Financial Affairs and one for Health & Welfare.
There are important differences between the two. A Property & Financial Affairs Lasting Power of Attorney can be set up so attorneys can act prior to capacity being lost. However, while capacity is retained attorneys may only carry out specific instructions given by the person they are acting for. This is very useful if that person is physically frail, ill, out of the country or otherwise unable to do something that their attorneys could do for them. If the Lasting Power of Attorney grants authority only when capacity is lost then it is less useful as physical infirmity alone can make it very helpful.
However, attorneys in a Lasting Power of Attorney for Health & Welfare have no authority until capacity is lost. If capacity is regained (for example after a stroke) their authority ceases.
The Five Key Principles
Five Key Principles are:
1. A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. Capacity is presumed to be ongoing until there is evidence to the contrary.
2. The right for individuals to be supported to make their own decisions – people must be given all appropriate help before it is decided that they do not have the capacity to make a particular decision. The inability of a person to make a decision in regard to a matter on one occasion does not give attorneys the right to assume the person cannot make a similar decision another time. This acknowledges that mental capacity fluctuates.
3. That we can all make unwise or eccentric decisions without being considered mentally incapacitated. Attorneys must not overrule a decision by the Donor purely because it is not a decision they would consider prudent or even reasonable.
4. All decisions must be made in the best interests of the person without capacity. The Mental Capacity Act provides a checklist of factors which all decision makers must work through in deciding what is in the best interests of the person for whom they are acting. This includes taking into account the wishes, feelings and beliefs of the person and also wherever possible, and to the fullest extent possible, involving them in the decision-making process.
5. Any decisions made should use the least restrictive means of intervention.
To find out more please use the links below or simply phone the Helpline.
For more information please visit our Lasting Power of Attorney page on our website: https://www.professionalwillservices.co.uk/lasting-power-of-attorney-in-frome-south-west/
To go direct to the downloadable leaflet “Lasting Power of Attorney: What It Is And How It Works (in plain English)” just click the following link: https://www.professionalwillservices.co.uk/wp-content/uploads/2021/04/2_Lasting_Power_Of_Attorney_Booklet.pdf
If you have any questions just call the Helpline. There is no charge or obligation
Helpline: 01373 471117
or check our many testimonials on our website using the following link: www.professionalwillservices.co.uk
Bob Cullen ASWW