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The catch-22 of lasting powers of attorney

10 July 2019

Jane Cassell of JC Independent Wills & Probate Ltd, wills solicitor, discusses lasting powers of attorney (LPAs).

 

In July 2012, I was woken from my sleep to tell me to come to the hospital, as my Dad had had a fall and hit his head so hard that it caused swelling of the brain.

Some of you will relate to the idea that there's sometimes an event in life that changes everything.  Now, my life feels like it is split into before Dad's accident, and after.

If you've ever found yourself at the bedside of someone in intensive care, you'll know how all-consuming it is. I was blessed to stay with Dad for weeks, moving from ICU to a High Dependency ward, then to a normal ward and ultimately to a Neuro Rehab facility, where he learned to walk, talk and function again.  We got him home by the November of that year.

We were lucky.  We didn't lose him, and we didn't lose his personality.

Dad hasn't made a full recovery, but he's a bit of a living legend, and he's still very active, working on his allotment, reading lots of books and enjoying his life.

Some people, even young people, do not make the recovery that we as a family have been blessed to observe.  Some people remain vegetative, some need daily carers, some lose their will to live.

Although I've specialised in wills, lasting powers of attorney (LPAs) and probate services from shortly after qualifying as a solicitor in 2001, I honestly didn't appreciate how quickly life can change, until that night, when I was called to the hospital.

This is why I go on about lasting powers of attorney (LPAs) the way I do.

What is a lasting power of attorney?

Lasting powers of attorney are documents that you have to put in place while you don't need them, a bit like wills.  But they achieve the opposite.

Wills take effect when you die, and are all about giving your financial assets away, because you don't need them anymore.

Lasting powers of attorney are only relevant during your lifetime, particularly useful if you're not able to make decisions any more, and they are all about the attorneys of your choice, managing your affairs in a way that looks after your best interests.

There are two types of lasting power of attorney.  One relates to your property and financial affairs, and this can be used to pay your bills, make sure your investments are doing as well as they should, and dealing with property matters.

The other lasting power of attorney relates to your health and welfare.  It allows your attorneys to make decisions which affect your personal welfare, such as what you eat, what you wear, who visits you and who doesn't visit you (which in some families, is more important!).  It can also give authority for your attorneys to speak to doctors as though they are you, in relation to life sustaining treatment.

Lasting powers of attorney are a great idea for adults of all ages to consider, at the same time as wills.  People tend to think of LPAs being relevant if you develop dementia, but if you suffer a stroke or are involved in a car accident, either as a driver, passenger or pedestrian, they're a great thing to have in place.

I hope your family don't get a call in the early hours to say come to the hospital, but if they do, to know you have appointed the right people in your LPAs to take charge, provides real peace of mind for all concerned.

Lasting powers of attorney versus general powers of attorney

The benefit of lasting powers of attorney compared with general powers of attorney, is that they last beyond your mental capacity.  They carry on, even if you're unable to communicate or make decisions yourself.  That makes them a truly valuable document to have in place.

And remember, you can't wait until something goes wrong, and then ask to have them in place.  It doesn't work like that.  Just as creating a will after you die is not possible, creating lasting powers of attorney after the accident, stroke or other debilitating event, is not possible.  You really do have to act before you need them.

Since my previous blog for the Law Society about why I'm so passionate about wills, a good number of solicitors have contacted me to take action, some reprimanding themselves for not dealing with matters before now.  It's also important for professionals to put LPAs in place, so that if something unexpected happens which you manage to survive, the right people can take charge (perhaps your fellow partners, your spouse or someone else of your choice).

 

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.

Remember A Charity is a nationwide campaign with over 160 charities, working collaboratively with a range of audiences to raise awareness of legacy giving and help make it become a social norm. It was launched in 2002.

Explore the 2018 Law Society Gazette Charity & Appeals Directory, a useful tool to check the information required when your client is writing a charitable gift into their will

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About the author

Jane Cassell runs JC Independent Wills & Probate and is a member of the Private Client Section of the Law Society

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