While many have heard of a Lasting Power of Attorney, there are some misconceptions about what this legal document could mean for you. Having a Lasting Power of Attorney at any age can provide security and peace of mind that, if something should impact your mental capacity, your trusted loved ones can still help to make decisions when you can’t. As part of our series teaching you all about Lasting Power of Attorney (LPA), we’re de-bunking some of the myths you may have heard.
Myth 1: Your next of kin can handle your finances if you’re unable to
While you may assume that your spouse or next of kin can deal with your financial affairs if you’re unable to, either because of ill health or an accident, the reality could be very different. If you can’t make decisions because you’re temporarily incapacitated or lose mental capacity, it’s unlikely that those closest to you will be able to step in and look after your finances.
By assigning one or more Attorneys, you can rest assured that if something were to cause your mental capacity to deteriorate, your spouse, next of kin or someone else you have appointed can step in and help.
Myth 2: You can get an LPA when you need one
A common misunderstanding is that you can create an LPA when you need one. As you need mental capacity to nominate someone you trust, if you don’t set one up before something happens, it’s typically too late.
Instead, your loved ones will have to apply to the Court of Protection to look after your affairs, which is normally time consuming and more expensive. Furthermore, the person chosen by the court may not be the individual you would have chosen to make decisions on your behalf.
Taking the time out now to put an LPA in place can save time and stress in the future for both you and your family. When you set up your LPA, you will be able to choose who you would like to make the decisions for you if needed.
Myth 3: Anyone can be an Attorney
Having an LPA means that you can choose the people you trust the most to make decisions for you if you lose mental capacity. However, making this decision can be tricky, and enlisting the support of an impartial financial adviser can help you along the way. There are some rules about who can act as an Attorney. If you’re considering someone to act as your Attorney, they’ll need to meet strict criteria, which includes:
- being an adult of sound mind
- not being bankrupt
- someone you trust.
You might have someone or a few people in mind that you would like to act as your Attorney, so it’s a good idea to take some time and consider whether they are the best choice to make decisions on your behalf. Sometimes the most obvious choice – such as a spouse or child – may not always be the right one for you. Your financial adviser can help you to understand what to consider before making this decision.
Myth 4: Appointing an Attorney means they can make decisions even while you still have mental capacity
Putting an LPA in place early doesn’t mean that you will lose all ability to make your own decisions. Having an LPA before you need it ensures that if something happens to you unexpectedly, the people you’d like to have decision-making power are able to take over this responsibility as soon as you can no longer do it.
If you were to lose mental capacity, your Attorneys can’t simply do whatever they like once they start making decisions for you. The Mental Capacity Act 2005 includes a robust Code of Practice, which means that anyone you nominate to be your Attorney has to act in certain ways.
As such, they must always:
- assume that you can make your own decisions until it can be proven otherwise
- take all practicable steps to help you make as many of your own decisions as possible
- honour any decision you make, even if your Attorney believes it’s the wrong one
- always act in your best interests
- consider other ways they could act for you that are less restrictive of your rights and freedoms, and still achieve the desired result.
Myth 5: You can’t cancel or change an LPA
As long as you have mental capacity, you can cancel an LPA at any time, whether that’s before or after it’s registered.
If you want to amend an LPA that you’ve created, you can do so using a “partial deed of revocation”. This provides peace of mind that if your circumstances change, or you would rather someone else make decisions on your behalf, you can alter your LPA accordingly.
For more information on this, please visit the Office of the Public Guardian.
If you are considering putting an LPA in place, speak to one of our financial advisers today.
Please note: the FCA does not regulate advice provided on wills, trusts or Lasting Powers of Attorney.
Monday 23 October 2023