Expert urges early Lasting Power of Attorney action

18 July 2023

A legal expert today urged young adults to consider arranging Lasting Power of Attorney (LPA), insisting: “It could be more important than a will.”

Claire Whittall, Senior Associate at award-winning West Midlands law firm Higgs LLP, said it’s never too soon to consider a Lasting Power of Attorney, which gives a nominated person or persons authority to make decisions on someone else’s behalf should they lose the mental capacity to do so themselves.

This could occur following a serious brain injury or illness, severe mental illness or an addiction severe enough to impair decision-making.

Claire said: “Many people believe a Lasting Power of Attorney is just for the elderly and, unsurprisingly, the majority of people I advise are 70 or older.

“But, as Fiona Phillips’ Alzheimer's diagnosis has shown, tragedy can strike at any time.

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"Most people understand the importance of having a will, but the role an Lasting Power of Attorney can play when someone loses mental capacity is less widely understood. In my opinion, LPAs can often be more important than wills"

Claire Whittall

Senior Associate, Higgs LLP

“People assume there is an automatic right for their next of kin to make decisions on their behalf if they are no longer able to do so, but this is not the case.

“Having an attorney in place can offer peace of mind that someone you trust wholeheartedly will look after your interests should the unexpected happen at any age.

“Anyone over the age of 18 can appoint an attorney. It’s never too early.”

An individual must have mental capacity at the time they make the Lasting Power of Attorney for it to be valid.

There are two types of LPA. A property and financial affairs LPA gives the attorney the power to make decisions about financial matters, which include managing bank accounts, paying bills, collecting benefits or selling property.

A health and welfare LPA gives an attorney the power to make decisions about care, including hygiene and eating, medical care, moving to a care home and medical treatment.

Claire added: “It’s possible, and for most people advisable, to action both Lasting Power of Attorneys at the same time.

“Should a person unexpectedly lose mental capacity without an appointed attorney, all financial property decisions will be put on hold until a suitable person is appointed as a deputy through the Court of Protection and welfare decisions may fall to strangers.

“That can take a long time and in the interim your loved ones won’t be able to access any of your assets, including property.”

Claire said an LPA can take eight to 10 weeks to be approved by the Office of the Public Guardian, which is significantly quicker than waiting for a deputy to be appointed through the Court of Protection which would be necessary if a person loses capacity without appointing an attorney.  

Under an LPA you chose for yourself who you trust to be your attorney and you can set out any wishes or feelings you have about the management of your affairs that you would like them to observe.  If you needed a deputy appointed then a Judge decides who they believe to be suitable to manage your affairs and on what terms.

An LPA is also much more cost effective and avoids legal fees associated with a deputyship application.

She added: “Our legal experts will examine what an individual’s affairs looks like and how their life is ordered. They’ll take the time to understand their needs and prepare the documents accordingly.

“Ideally, the Lasting Power of Attorney should be reviewed every few years or as circumstances change.

“I tell clients to think of it as an insurance policy. You don’t want to use it, but it’s ready should the need arise.”

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