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Why is it important to make a lasting power of attorney?

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A power of attorney is a document that enables you to appoint someone to act on your behalf in respect of a transaction. This is a general power of attorney. If you have a GPA, it is very important to be aware that if you would like it to continue to be in place even if you lose mental capacity, then you need to make a special kind of power of attorney which is called a lasting power of attorney. 
 
What is a lasting power of attorney (LPA)?
 
A lasting power of attorney, or LPA, is a legal document that lets you appoint one or more people to help you make decisions or to make decisions on your behalf should you ever lose mental capacity. It comes in two varieties, one for property and finance, and one for health and welfare. 
 
Why should I consider a LPA
 
People believe that their nearest and dearest will be able to take control of their financial affairs if they no longer can. This is not true. If you do not have a power of attorney in place, even your spouse couldn’t take any action in relation to a bank account in your sole name. If you have a power of attorney, then this would not be an issue. 
 
What happens if I do not make a LPA
 
If you do not make a LPA and you lose mental capacity, then it will be necessary for someone to make an application to the Court of Protection to appoint a Deputy to act on your behalf regarding any financial affairs and other issues that require management. In this situation it would mean the Court would decide who is appointed. 
 
What should I consider when making a LPA
 
When making a lasting power of attorney you can select (within reason) whomsoever you want to act on your behalf. There are a small number of restrictions as to who can be appointed. Ultimately, the most important factor in considering who to appoint, is “do you trust them?” because it may well be that they could deal with everything that you own in the same way you could deal with things yourself.
 
How many attorneys do I need?
 
When considering how many attorneys you need, it is important to think about the potential authority that you will be giving them. You don’t need more than one attorney, but you can choose to have more than one if you wish. The more attorneys you have, the more people involved with your affairs, so it is important that you are confident that they’ll be able to act with their fellow Attorneys, should you choose to have more than one.
 
Attorneys can be appointed to act in various ways, on a sole basis if you only have one, on a joint basis if you have more than one, on a joint and several basis if you have more than one (this differs from the joint appointment in that in appointing your attorneys on a joint and several basis either of them can act on your behalf independent of the other). You may also have a combination appointment of joint and joint and several. However, when considering this, it is important to take advice and consider how you would wish your attorneys to act very carefully.
 
Are LPAs safe?
 
There are a number of safety measures now built in with LPAs. You are required to have a Certificate Provider who signs to confirm that they have discussed the LPA with you, and that nobody is forcing you to do it. You can also notify certain individuals of the creation of the lasting power of attorney, if you wish.
 
It is important to note that you may seek to revoke your LPA at anytime whilst you have capacity. Your attorneys are under a duty to discuss any decisions that they are looking to make with you before making any such decisions on your behalf. 
 
We are now all living longer but sadly many of us will experience a loss in ability, both physically and mentally, to deal with our private affairs. If you are comfortable with the authority that you are granting under a LPA, then it is an important step to think about and make. 
 
If you would like to discuss lasting powers of attorney further, or have any more questions on LPAs, please call me for a free initial consultation on 01245 453833 or alternatively you can email me at emma.clarke@birkettlong.co.uk 

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