Why a Lasting Power of Attorney Is Crucial

A Lasting Power of Attorney is a crucial document for ensuring your affairs are managed if you lose mental capacity.

Our Head of Private Client explores the importance of Lasting Powers of Attorney and what happens in the event of a person losing mental capacity in respect of managing their property or financial affairs or making crucial medical decisions.

Why You Shouldn’t Delay

Joanne highlights that whilst it may be tempting to delay matters, no-one knows what the future may hold. If anything has taught us from the more recent Covid-19 pandemic, changes can happen quickly. One minute you could be fit and healthy and managing all of your day-to-day activities and decisions, and the next you could be struck down with a serious illness which affects your capacity to make simple decisions about paying a utility bill, selling your house, or deciding on a course of treatment.

Latest results from the Office of National Statistics have revealed that, as a society, we are living much longer. One in five people in the U.K. are aged over 65, and it's worth considering the benefits of putting a Lasting Power of Attorney in place to give you peace of mind in the event of your losing mental capacity.

What Is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document which allows you to appoint one or more people to act as your Attorneys, enabling them to make decisions such as those highlighted above, should you lose capacity in the future.

Please see our frequently asked questions for more information on what Lasting Powers of Attorney are and how we at Endeavour can help you.

Dementia and the Importance of Early Planning

To further exemplify the importance of having a Lasting Power of Attorney, Joanne explores the effects of a dementia diagnosis and how having in place a Lasting Power of Attorney could help.

Data gathered from the NHS back in 2024 indicated that there had been reports of a significant increase in dementia diagnosis cases over the year and highlighted how crucial it is to secure an early diagnosis and subsequently put your affairs in order early.

Whilst dementia is a progressive illness, Joanne explains that if you or your loved one has a diagnosis of dementia, a Lasting Power of Attorney can still be put in place before it becomes too late.

Capacity and the Legal Test

The reported case of The Public Guardian v RI, D, RS (2002) helpfully highlighted the necessary test under the Mental Capacity Act 2005, recognising that to make an LPA you must have all the “relevant information” and be able to retain it.

The MCA 2005 places key emphasis on the following, and it is these principles which Joanne follows when acting for someone in making a Lasting Power of Attorney:

• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success.
• A person is not treated as unable to make a decision merely because they make an unwise decision.
• An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done or made in their best interests.
• Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Types of Lasting Power of Attorney

Whilst there are two types of Lasting Powers of Attorney, we strongly recommend that clients with dementia put both in place. Once the Lasting Power of Attorney is completed and signed, it needs to be sent to the Office of the Public Guardian to be registered, and only when it is registered will your Attorneys be able to make decisions for you.

If your loved one’s dementia is so advanced that they cannot create a Lasting Power of Attorney, there are options to apply to the Court of Protection to be appointed as deputy for both a person’s welfare and property and financial affairs, although it is harder to become a deputy for a person’s health and welfare — see our blog on Court of Protection and Deputyship Orders (to be written).

How We Can Help

At Endeavour Law, we specialise in helping families prepare Lasting Powers of Attorney to ensure that the right decisions are made when they are needed most. Contact our specialist team today to discuss how we can help you.