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Have you ever considered what would happen if you were in an accident or if you were diagnosed with a condition which meant that you could no longer make decisions for yourself?

If only we could see what the future holds? Maybe we would then be in a better position to plan for what is to come. No one has the answer but this doesn’t mean that you can’t plan ahead for some eventualities.

It is a common misconception that your spouse or civil partner would automatically be in a position to deal with matters for you. Some also think that their ‘next of kin’, perhaps a child, parent or sibling, would be able to help instead. Unfortunately, they too do not have the legal right to deal with matters on your behalf.

This leaves many people in a vulnerable position. Family members, may find themselves in the position that they are unable to access information regarding your assets, even in order to keep paying your bills or dealing with your day to day care.

So, what can you do to prepare for your future?

Lasting Powers of Attorney – what are they?

A Lasting Power of Attorney allows one or more people you Trust implicitly – called “Attorneys” – to make decisions on your behalf, known as the “donor”. There are two types of Lasting Powers of Attorney:

Both Lasting Powers of Attorney are a legally binding document recognised by financial institutions, such as banks, plus government bodies which allow you to appoint individuals closest to you to assist you during your lifetime. Guidance and conditions can also be included to ensure that you are protected whilst also providing your appointed Attorneys with some guidance, which will help them to make decisions in the future.

Lasting Powers of Attorney must be registered with the Office of the Public Guardian before it can be used. In the case of Property and Financial Affairs Lasting Power of Attorney, these can be used prior to the donor losing capacity, if the donor wishes at the time of the Lasting Power of Attorney being created.

A Lasting Power of Attorney can therefore best be described as an insurance policy and while it’s hoped it will never need to be used, it’s there just in case.

What if it’s too late and your loved one has already lost capacity without putting a Lasting Power of Attorney in place? – Deputyship

If you don’t have a Lasting Power of Attorney and you lose the ability to manage your own affairs, the alternative is Deputyship. This is a slow and expensive process (usually around 6 – 12 months), involving an application to the Court of Protection.

This therefore makes it extremely difficult for the person looking after you, as they won’t have legal authority to help you until after the authority is granted.

Health and welfare deputyships are uncommonly granted by the Court of Protection and are usually seen as a last resort. Instead, an order may be made to assist with a specific issue rather than delegating full decision-making power. This is because the Court prefers to retain powers in this respect given the sensitive and often complex nature of the decisions to be made.

If you’d like more information about Lasting Powers of Attorney contact our expert Private Client Team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.

Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection. 

Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there has been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one. 

What is a LPA?

There are two types of Lasting Power of Attorney;

They are legally binding documents, registered by the Office of the Public Guardian, used to protect your interests by nominating people you Trust to act on your behalf, should you become unable to make important decisions about your own welfare or financial decisions.

What if I lose capacity and I don’t have LPAs in place?

Your loved ones would need to begin a lengthy and costly application to the Court of Protection to apply for Deputyship over your finances. The Court of Protection must be satisfied that the appointed Deputy is in the individual’s best interests. When it comes to health and welfare matters it’s often much more difficult for a Deputy to be appointed. That said, there are certain scenarios where the Court of Protection require cases to be brought before them for a decision to be made.

Deputyship also imposes additional duties on the Deputy in terms of filing accounts and supervision from the Court of Protection.

How to avoid an application for Deputyship

To avoid this difficult kind of legal situation it’s important to utilise the expertise of a specialist lawyer to assist in putting in place Lasting Powers of Attorney and support those making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.  

At Franklins, our expert Private Client team provide clear, practical advice in future planning. For further information Lasting Powers of Attorney, contact the team on 01908 660966 / 01604 828282 or email PrivateClient@franklins-sols.co.uk.