If you are considering giving a Lasting Power of Attorney (LPA) to a loved one, we understand that this may feel overwhelming. There are many considerations, including choosing someone you trust to carry out your wishes and conduct your affairs as you would want. Choosing the right attorney, and making your wishes clear to them, is an essential part of setting up your Lasting Power of Attorney and can help you move forward in your life with confidence. In this article, we look at how to approach the discussion and how to ensure your wishes are clearly communicated when giving Power of Attorney.
Addressing your concerns about giving Lasting Power of Attorney
Creating an LPA is essential for planning for the future. Unfortunately, life is unpredictable, and in the future, you may need someone to make decisions for you and carry out actions on your behalf should you lose the capacity to do so for yourself. An LPA is designed to provide peace of mind, but we understand that you may still be apprehensive. What if your attorney doesn’t know what to do? What if they do not follow your instructions? Concerns about LPAs are very normal, and there are steps you can take to make the process straightforward for your attorney, providing them with clarity about their role.
Choosing the right person to be your attorney
Most people have an idea about who they wish to be their attorney, but it is still important to consider your choice carefully. You should trust the person you choose to follow your wishes and have the common sense to manage your financial affairs and care confidently. You can also appoint more than one attorney. For example, you may have someone in mind who would be better at arranging everyday care and another who is better with financial decisions.
Discussing your wishes
We would recommend raising the issue with your family and loved ones before you make your LPA. They can then work with you to choose the best person for the role. They may raise concerns or issues that you had not considered. Discussing the LPA with your loved ones is also an opportunity to clarify your wishes. You should discuss both financial matters and care matters. Care matters may be where you would like to live, what you like to eat or the clothes you like to wear.
Setting out clearly how you would like your affairs to be managed
To give you additional peace of mind, you can also set out your wishes in a document known as an advanced statement. An advanced statement allows you to set out clear, written instructions. You may wish to include any wishes, preferences, values, and beliefs about your future day-to-day care and
If you do not have a Lasting Power of Attorney in place
If you lose mental capacity without having a Lasting Power of Attorney in place, those close to you will need to apply to the Court of Protection for a Deputyship Order to make decisions on your behalf. The Order will state what your Deputy can and cannot do and can be extremely restrictive and make decisions you may not want the Deputy to do in relation to your finances and personal welfare.
The application process is quite rigorous, and daunting and can take several months as there are statutory timelines that need to be met.
Once the Order has been made, the Court may ask the Deputy to set up a security bond before they can be appointed. This is a type of insurance that protects your finances, and the cost will need to be paid by your loved ones from your own funds. The amount payable will depend on the value of your estate and how much of the estate the deputy will be allowed to control.
If a deputy has behaved improperly or dishonestly
If there is a concern that a deputy has misused, mistreated, or neglected your wishes or has misappropriated any associated funds, your family or indeed the local authority or professionals can act. In such circumstances, a complaint can be made to the Office of the Public Guardian, or possibly, an application can be made directly with the court to remove the deputy from their role and freeze funds connected with the estate. If anyone finds themselves in this situation or believes they may be in danger, they must consider reporting it to the police.
It is therefore most cost-effective and reassuring, to choose and instruct your attorneys as you wish and/or state your preferences, while you are still able to. Furthermore, there should be no ongoing costs to keep your attorney appointment in place, so it’s a win-win situation!
If you need help with an LPA
You are invited to consult a member of our Private Client team to provide precise and professional advice and take matters forward where we will work together to give that peace of mind.
This is not legal advice; it is intended to provide information of general interest about current legal issues.