‘I already have a Will so I do not need a Lasting Power of Attorney too’
A will is a separate testamentary document to a Lasting Power of Attorney. Lasting Powers of Attorney give your appointed attorneys the ability to manage your property & financial affairs and health and welfare decisions during your lifetime.
Whereas a Will only comes into effect upon your death, where your named executors will deal with the administration of your estate. Whilst you can have the same people as your attorneys and executors, these are two different roles.
‘My Partner will deal with my affairs if I am no longer able to manage them myself’
Whilst it may be your wish for your Partner to take over your affairs once/if you are unable to, they would not have legal authority to do so without a Lasting Power of Attorney in place. Having Lasting Powers of Attorney creates a sense of security and ensures that you can formally put in place who you wish to manage your property & financial affairs and health & welfare decisions.
Without Lasting Powers of Attorney in place, if you did lose mental capacity, anyone could make an application to the Court of Protection to obtain a Deputyship Order to deal with your affairs. Therefore, whilst you have the mental capacity to do so, it is important that you make LPAs and appoint those who you trust to be your registered attorneys.
‘You can’t make Lasting Powers of Attorney if someone has dementia’
To make a Lasting Power of Attorney (LPA) the Doner (person who the LPA is for) must have the capacity to make one. The capacity of the Doner is assessed through task specific and legal tests. A typical question that the Doner may be asked is ‘Can you give an example of what your attorneys would be able to assist you with if they were appointed?’
If the Donor does not satisfy the capacity assessment, an application can be made to the Court of Protection for a Deputyship Order. The Order will appoint a named Deputy, who will have the authority to deal with the affairs of the individual. It will be at the Courts discretion to decide how much power a Deputy has.
‘I can’t have all of my children appointed as my attorneys’
It is recommended that you have between one and four attorneys, although you can have more if you want. There is an option to have replacement attorneys, where you can name individuals that you would like to step in as your attorney, should anything happen to any of your original appointed attorneys.
You should appoint attorneys that you believe would work well together and individuals that you trust to act in your best interests.
‘You have to appoint the same people in both types of Lasting Powers of Attorney’
There are two types of Lasting Powers of Attorney- one that deals with your property & financial affairs, and one that deals with your health & welfare. You do not need to appoint the same people as your attorneys in both documents. For example, you could appoint a friend that has a medical background in your health and welfare LPA and not include them in your property & financial affairs LPA. Alternatively, you can have the same attorneys in both documents.
If you have any other queries regarding Lasting Powers of Attorney, please do not hesitate to contact us and a colleague in our Wills, Trusts and Probate team will happily assist you.
