Myth 1: I have a will in place, so I don’t need an LPA.
A will and an LPA are two completely separate documents – they don’t interact with each other and, in fact, they can’t operate at the same time. A will comes into play when you die to determine what happens to your assets, while an LPA is used during your lifetime, appointing attorneys to act on your behalf if you can’t make your own decisions due to an accident or an illness. So an LPA is used in your lifetime and ends on your death. Your will comes into play from that point on.
Myth 2: jointly held assets are not affected by mental capacity.
This is probably one of the biggest misconceptions: a lot of people rely on thinking that they don’t need an LPA as their bank account and property are in joint names. But unfortunately, if financial institutions become aware that a joint account holder has lost capacity, it’s not uncommon for them to freeze accounts until a valid LPA is presented.
That’s because there is no way of knowing whether the account holder is aware, understands or has even consented to a transaction. There’s no separation between the funds of the incapacitated account holder and the other account holder.
Likewise, with regards to jointly held property, if one of the joint owners wants to sell, both parties have to agree. If one of them has lost capacity, they can’t agree to the sale. You will need a valid LPA to sell the property.
Myth 3: My next of kin can make health decisions without an LPA.
Whilst medical professionals would always seek the opinion of a patient’s next of kin, your family essentially has no legal authority to make health or medical decisions for someone who has lost capacity. Without an LPA, medical professionals have the last word and have to make decisions that they believe are in your best interests. Sometimes this may conflict with what your family thinks is best.
Myth 4: You can only have one attorney
This is a myth – you can choose more than one person. They can act either jointly, which means that they must make all the decisions together, or you can opt for them to act ‘jointly and severally’ which means they can either act together or independently.
You can have as many attorneys as you like. The forms allow up to a maximum of four but you can add more should you wish. Bear in mind, however, that the more attorneys you have, the more difficult it might be for them to make decisions together.
We generally recommend that you appoint more than one person, in case an attorney can’t actually make decisions for you at some point. They might be in a foreign country, for example, and not be available, or they may pass away before you.
The powers of attorney can be really flexible in terms of ensuring that you’re protected through various different scenarios. You can also appoint replacement attorneys if for any reason the original attorneys are unable to act. So, while you can have one attorney if you want to, it’s probably better to have more than one.
Myth 5: the LPA must be used once it is made.
This is not necessarily true. For the property and financial LPA you can decide whether it can be used straight away, but whilst you’ve got mental capacity your attorneys can only act with your permission and guidance.
The health and welfare LPA can only be used once you’ve lost capacity. So, whilst you have capacity your attorneys can’t make decisions on your behalf. They can only step in when you’ve lost capacity. Until then, the Power of Attorney can be set up, kept safe and if a situation arises where it is needed, your attorneys can immediately step in.
Myth 6: LPAs are just for the elderly or ill.
It’s true that LPAs, capacity and other related subjects are typically associated with age-related illnesses such as dementia. But people can lose mental capacity for many different reasons including accidents, strokes, unconsciousness or coma which might happen at any age. Prescription drugs can also affect someone’s ability to make decisions.
So it’s not just for the elderly or the ill. Young people need protection just as much – accidents and the unexpected do unfortunately happen.
Myth 7: Once nominated, attorneys can do whatever they like.
This is something that people do worry about – that they will lack control and that attorneys have freedom to do whatever they want. But actually LPAs are put in place to protect you.
Your attorneys have to act in line with the Mental Capacity Act which is statute law. There are numerous rules and codes of practice about how attorneys make decisions for someone who’s lost capacity. Essentially, they have a duty to make decisions in the best interest of the person who’s lost capacity.
So whilst the powers are fairly broad, there are statutory restrictions and attorneys are liable for any breach – there are real-world consequences of acting against the guidelines. Attorneys can be prosecuted or have to repay money spent.
Myth 8: I can just make an LPA when I need one.
Unfortunately, it’s not that simple. When you actually need one, it’s likely to be too late for you to be able to make an LPA. You can only make an application for an LPA whilst you have mental capacity and are fit and healthy.
Once you’ve lost capacity, the process is completely different. Your family will need to go through the Court of Protection to apply for what’s called a Deputyship Order. This is a much more lengthy process and costs a lot more money.
At a time when it’s needed the most, you don’t want that delay and extra cost. So, no, you can’t just make an LPA when you need one. It’s something that needs to be in place before capacity is lost.
Myth 9: An LPA means I lose control over my life.
I think this is what puts some people off making LPAs. They think they are signing their life away to their attorneys. But as I mentioned before, LPAs are actually designed to protect you and, in fact, give you more control.
Choosing the right attorneys is obviously key. They must be people that you trust to speak for you when you can’t speak for yourself. There are strong safeguards and rules to protect you but, ultimately, provided you’ve chosen people that you trust, you’re actually retaining control.
The LPA is there to make sure that decisions can still be made and your wishes can be respected. Without an LPA, those decisions are outside your access and your family can’t get involved.
Myth 10: putting an LPA in place is too much hassle
That’s something we’re here to help with. We can take the pressure off. The process can sometimes be a little bit long-winded. The forms are long, lots of signatures are needed, they have to be registered with the Office of the Public Guardian… but that’s where professional services come into play. We manage the whole process on your behalf and make sure that the documents are prepared in your best interests.
Plus, not having an LPA is ultimately a lot more hassle. You’re going to be left more vulnerable. Your family will have to go through court procedures to get the right provisions in place and it’s just going to be a much bigger headache for everyone involved.
More information on Lasting Power of Attorney
LPAs are important – they allow you to retain control over your life and stay protected if you’re not able to make your own decisions. Even if you’re young, even if you think you don’t need it, anything could happen at any time. So why take the risk?
For more information, listen to our previous podcast on LPAs: https://where-theres-a-will-theres-a-way.simplecast.com/episodes/lasting-power-or-attorney,
which goes into more detail about what the process actually involves and what the attorneys’ powers are. As always, we’re always available to discuss this in more detail so please get in touch.
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