There has been growing concern in the legal profession that people are not planning ahead or considering what would happen to them or their finances if they were unable to express their views due to an accident, medical emergency or cognitive impairment.
In response to these concerns, SFE (Solicitors for the Elderly) and an independent think tank, the Centre for Future Studies, conducted a study on health and welfare decisions.
The report established that the ever-increasing number of people living with dementia combined with the failure to plan ahead, exposes a looming incapacity crisis.
Our study found that 97% of people have not made the necessary provisions for themselves, should they lose mental capacity. A further 36% admit to having made no provisions at all for later life, including a will, pension, funeral plan or lasting power of attorney. It is extremely worrying that as a society, we are not planning for situations that will almost definitely affect us or our loved ones later down the line.
Our research also found that 73% of the population (over 51 million people) are worried about becoming mentally incapacitated and losing the ability to make decisions for themselves, but 79% have not spoken about, or even considered, personal medical, care and end of life decisions.
Why you might want to think about a Lasting Power of Attorney
Planning ahead is in not just about having difficult conversations, there are many misconceptions out there, especially around “next of kin” and rights with joint bank accounts. So, it is imperative that once you have discussed your wishes for later life, you should write it all down and get it into a legal document called a lasting power of attorney (LPA). In an LPA, you can express your wishes and appoint the people you would like to make decisions on your behalf, should the need arise.
SFE’s advice is to create an LPA as soon as possible and state clearly in it what you would like to happen. It is a very important legal document that gives a wide authority to those who you appoint.
What types of LPA are there?
There are two types of LPA, health and welfare or property and finance. It is vital when you are putting an LPA in place that you consider who is the most appropriate person or people to be appointed as your attorney(s). An attorneyship is an important role and should not be entered into lightly.
With a health and welfare LPA, your attorney can only make decisions for you if you are unable to make decisions for yourself. They may have to make serious healthcare decisions, decide where you live or arrange your care. For a financial LPA, your attorney can act under your direction at any time, or only if you lose mental capacity depending on what you indicate in the LPA itself. Your attorney could be responsible for managing your bank accounts, investments or selling your house, depending on what you specify in your LPA.
What to include in an LPA
Unfortunately, at times not all attorneys have been honest when dealing with the affairs of a another. Family dynamics can come into the situation, so real consideration and thought should be made about how your LPA should be written. Perhaps limiting the remit of the attorney through specific instructions in the LPA, for example that accounts are to be sent to an accountant or financial advisor, or perhaps making a specific decision jointly, with another attorney.
Expert advice can be valuable
It is possible to create a DIY LPA online and register the document with the Office of the Public Guardian. However, seeking specialist advice means that you can avoid the risk of a weak or flawed document, which may not stand up to scrutiny and cause significant emotional and financial strain when it is time to be used.
An expert with experience of creating robust LPAs, such as a fully accredited SFE Lawyer, will be able to set out exactly what you want by using the right terminology, prompt and help you to really think about things that you may never have thought about before and create an LPA that will stand up to any challenges such as undue influence or even to the challenge that you did not have the capacity to create the LPA in the first place.
So be brave, have that conversation, put your wishes down in writing and use an accredited lawyer to ensure that what is important to you is in your LPA, so that you can keep being you for as long as possible.