If you already have a Will, you are ahead of many people. It is one of the most important steps you can take to protect the people you care about. However, there is a question we often get asked: “If I have a Will, do I really need a Lasting Power of Attorney as well?”
The short answer is always yes. In this blog, our private client team explains why and details what each document is actually for.
The Difference Between a Will and a Lasting Power of Attorney
A Will is a legally binding document that sets out your wishes for how your estate should be distributed after you die. It encapsulates various important aspects of estate management, including inheritance tax planning, the proper distribution of assets, and the appointment of guardians for your children, if needed. A Will also removes a great deal of uncertainty and stress for those you leave behind and reduces the chances of future disputes. Read why using a solicitor when writing your Will is so important in our previous blog: Why You Need a Solicitor to Write Your Will.
A Will is crucial, but it only takes effect after your death. I cannot help if you become incapacitated, protect you in the event of a serious accident or dementia diagnosis, or allow your family (including your spouse) to manage your finances or make decisions about your care if you are not able to do so.
That is where a Lasting Power of Attorney comes in.
What Is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more trusted people, known as attorneys, to make decisions on your behalf should you lose mental capacity. Read our previous blog, “How to Choose an LPA Attorney”, for related information.
There are two types of LPA:
- Property and financial affairs. This LPA enables your attorney to make decisions related to your finances and property, for example, buying and selling a house, managing bank or building society accounts, paying household bills, and claiming pensions and other benefits.
- Health and welfare. A health and welfare LPA covers decisions about health and welfare issues, such as medical treatments and care arrangements, including where a person should live and arrangements about their day-to-day care.
LPAs must be registered with the Office of the Public Guardian (OPG) before they can be used.
Read more about LPAs in our guide, ‘Frequently Asked Questions About LPAs’.
What Happens If You Lose Capacity Without an LPA?
Unfortunately, this is the reality that many families discover too late. There is a common misconception that a spouse, adult child, or close family member has an automatic right to manage your affairs or make health decisions for you if something happens to you. But they do not.
Without a correctly registered LPA, even a husband or wife has no automatic legal authority to access their partner’s bank accounts, manage their property, or make decisions about their care. The only route available is to apply to the Court of Protection to be appointed as a deputy. This process can be lengthy, much more expensive, and stressful at a time that is already incredibly difficult. The outcome is also not guaranteed; the person appointed to be your deputy may not be who you would have chosen yourself. For related information, read our blog, ‘Frequently Asked Questions About the Court of Protection’.
Joint bank accounts can also become frozen, leaving families unable to access money for everyday essentials while the legal process runs its course.
LPAs Are Not Just About Old Age or Dementia
While loss of mental capacity is a common condition associated with diseases like dementia, this is only part of the picture. A stroke, serious accident, or sudden and unexpected health event can impact anyone, at any age, and suddenly, leaving someone unable to manage their own affairs.
Research from the Alzheimer’s Society suggests that there are currently over 980,000 people living with dementia in the UK, with that figure predicted to reach two million by 2050. However, it is important to remember that capacity can be affected by many different circumstances, and none of us can predict what might happen to our health in the future.
The Important Rule to Remember About LPAs
An LPA can only be made while you still have mental capacity. Once capacity is lost, the opportunity to put an LPA in place is gone. Your LPA must be completed, signed, and submitted to the OPG for registration before anything happens, not after.
It is also worth noting that registration with the OPG currently takes around eight to ten weeks to process an error-free application. So, acting early is crucial.
Research published by the Office of the Public Guardian showed that “40% of people who say they are not interested in LPA don’t think they’ll lose capacity, don’t care, or don’t want to tempt fate”.
These are all natural feelings, but putting off having an LPA is not a reliable plan.
Access the OPG guide here: LASTING POWERS OF ATTORNEY – THE IMPORTANCE OF MAKING THE RIGHT CHOICE.
Should You Have a Will and an LPA?
Ideally, yes. These are not alternatives to one another; they work at completely different stages of your life. Think of an LPA as protecting your interest and those of your family during your lifetime, and a Will as protecting your assets for those you love at the end of it. Together, they provide a safety net for the future.
If you have not set up either of these documents, these are the gaps that need to be addressed.
Lasting Power of Attorney Solicitors
A Lasting Power of Attorney can be as important as writing your Will and should be made regardless of your age.
Illness and incapacity can strike at any age, and it is crucial to have an LPA in place in good time to protect against unforeseen events.
Larcomes’ experienced Lasting Power of Attorney Solicitors can provide the expertise and guidance surrounding all areas of LPAs and the Mental Capacity Act.
Please call 023 9244 8100 or fill in our LPA Questionnaire to find out how we can help you.
Please note that this article is not intended as legal or professional advice. It is for general guidance only, and updates to the law may have changed since it was published.
