01 November 2021

If you are concerned as to what would happen if you lost mental capacity and who would make decisions on your behalf, then you should consider making Lasting Powers of Attorney to cover both property and financial decisions and also health and welfare decisions. These documents are invaluable if you do not have capacity to make decisions for yourself. They should be thought of as an insurance policy for the future. Head of Private Client Naomi Dyer explains:

What measures can be put in place if you fall ill, to ensure your wishes are followed?

BEFORE you fall ill you should appoint attorneys under Lasting Powers of Attorney (LPAs) to assist you with your financial transactions and health and welfare decisions. Some people are still able to make LPAs when ill but it depends on their illness. Much better to get them completed as soon as possible. They are not age-related products. Any adult can fall ill or have a life changing accident at any time.

What is an LPA? Why is it so important?

An LPA is a document where you, the donor ( nothing to do with organs) appoint one or more people whom you trust to act in your best interests in assisting you or taking control of financial decisions on your behalf and if you have lost mental capacity can make health and welfare choices for you too. They are so important to have in place so that they can be needed if necessary. If you lose the mental capacity to make a LPA then someone has to be appointed by the Court of Protection to act as your Deputy. This is very costly, more complicated and takes even longer than the current LPA registration process. LPAs provide peace of mind that someone can step in if you are temporarily or permanently unable to act for yourself or you just want help with getting life administration done.

Does making an LPA mean I lose control of making my own decisions?

No. Making a LPA doesn’t immediately render you unable to make decisions. It’s there as an aid if you need help. If you can’t make decisions then your attorneys will make them for you but they must always ask for your opinion as sometimes you may be more lucid than other days. Don’t forget sometimes LPAs are not used at all. They are instead seen as an insurance policy that thank fully you didn’t need to call upon.

What is the difference between an executor and an attorney?

An executor acts under your Will. An attorney acts under your LPA. They can often be the same person though. They would just ‘change their hat’ between their roles when the donor is living and when the donor has died.

What support would my appointed attorney need to be able to act?

The LPA needs to be registered with the Office of the Public Guardian (OPG) and then with the asset holders that the attorney may potentially need to deal with on behalf of the donor. If the attorney does need to use the LPA, the OPG can offer guidance and support as to what an attorney may or may not do and there is lots of helpful guides on the internet. But remember an attorney is not expected to suddenly become a financial advisor. They should always take advice before any major decisions are made.

What are the proposed changes to LPAs, and should I be worried about them?

The MoJ have released an 86 page paper on this. The proposed changes are to modernise LPAs by increasing safeguarding measures, improving the process of making and registering LPAs and making the process more sustainable for the environment. LPAs are extremely paper heavy and the OPG received £920,000 applications in 2019/2020. However, you should not worry about them. The thought of moving the whole process online sounds more efficient but it has been stated that the individual is the OPG’s primary concern and the donor’s needs are paramount.

For more information contact Naomi Dyer on 01935 811307 or email