Dear Father Christmas, this year I would like … new saucepans … a sunny Christmas morning and … everyone to get their Lasting Powers of Attorney done

17th December ‘18

Christmas is an important time of year for many reasons, but I would like to highlight something that might be a little less cheerful than presents and food, however vital you bear in mind and place on the new year’s ‘to do’ list.

For the lucky ones amongst us, we will gather with family and friends and be reminded of the support and love around us. Inevitably, we will also be reminded of the fragility of our lives.

This is particularly the case when we see elderly relatives, but, sadly, not exclusively. There will come a time for many of us when we simply cannot manage our affairs like we once could.

I am not suggesting that you raise this at Christmas dinner (only I, the wills and probate lawyer, regale the family on happy, festive occasions with stories of death and destruction – and yes, they hate me for it), but I would urge you to bear all this mind.

Whilst we are all [mostly] aware we will die, thus accepting the need for a will, we are not all aware of illnesses or accidents that may blight our future, unless you’ve been handed that tarot card recently.

Taking things seriously

As a private client solicitor, I have seen first-hand the consequences of not putting your affairs in order. It’s not uncommon for families to try to help an elderly or sick member of the family sorting their affairs when it’s just a little too late.

A new year is often a fresh start and a time for us all to knuckle down and crack on with the things we’ve ignored for the past year (I intend to get back into my skinny jeans; and to spend proper time on various creative endeavours).

Getting your affairs in order simply must start with ensuring your will is in place – closely followed, or prepared concurrently, by Lasting Powers of Attorney (‘LPAs’).

Your ability to choose

While you have mental capacity, you have the power to choose who to appoint as your ‘attorney’ – the person who can make decisions on your behalf in relation to certain matters, should you lose the ability to do so. If you lose capacity without an LPA in place and your financial and property matters need to be managed, the court will be the one who appoints that person (known as your ‘deputy’).

Critics of Lasting Powers of Attorney adroitly point out that the additional safeguards in place during the court procedure can be a big advantage over the less stringently regulated LPAs. Indeed for some clients, additional safeguards may be necessary.

However, additional safeguards can be stipulated in the LPA. The LPA can be tailored. The LPA can remain with you once you make it and only released to your attorneys if you lose capacity – or you can hand it to them on an ad hoc basis, for certain decisions (say you are out of the country and need your attorney to assist with a property purchase). The LPA is prepared by you. And the LPA is affordable.

The process of obtaining a deputyship order from the court can be lengthy, disputed and costly. More to the point, it is made at a time when you will have simply no say in it at all.

“My wife deals with all our affairs, already, so why would we need LPAs?”

The most common example of the importance of LPAs that I see with my clients is the individual whose partner suffers from a stroke, or degenerative brain condition, with no LPA in place. Their joint account has been frozen (yes, even a joint account with your spouse) and property sales/purchases cannot complete. Not to mention a financial institution will not discuss an individual’s finances with anyone other than the individual named on the account, or their attorney under a registered power of attorney.

In fact, the only significant financial matter that can sometimes be attended to on someone’s behalf without an LPA is their state benefits, and, even then, the local authorities are increasingly insisting on seeing an attorney’s authority.

I would also urge each client to seriously consider the LPA for Health and Welfare matters. It is my opinion that this LPA, whilst it cannot be used until someone loses capacity, is just as important as the LPA for Property and Financial matters: The emotional stress on family and friends who find themselves in a dispute with medical professionals or social services renders the power over health and care decisions invaluable.

Whether you think you need an LPA or not, please get in touch with us as we are well placed to advise you. We can draft LPAs for you that are tailored to your situation – including LPAs for business owners.

This paper is intended to be a brief note for clients and other interested parties. The information is believed to be correct at the date of publication but should not be relied upon as a substitute for professional advice. Please speak to a member of our team.

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