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25 November 2020

An LPA: crucial at any age

Lasting powers of attorney (LPAs) enable individuals to choose the person who would look after their affairs if they were ever to have mental capacity problems, and LPAs are not only for the elderly or sick.

It is a common misconception that lasting powers of attorney (LPAs) are only necessary for older people, when dementia or strokes become more likely and may cause a loss of mental capacity. However, LPAs are extremely important whatever your age. LPAs are also crucial for an immediate onset of mental incapacity, which can be caused by an accident or sudden illness, and it is a sad truth that these can happen to anyone, at any age.

Take Helen and James, a married couple in their thirties with children, who own a house together and have a mortgage. They both work and each have their own bank accounts into which their salaries are paid. They both transfer money to a joint account each month, which covers the mortgage, household expenses and childcare costs.

One day, James is in a car accident. Tragically, he remains in a coma for several months. James is obviously unable to access his bank accounts but the mortgage still needs to be paid, as do other household expenses and childcare costs. Helen cannot cover these on her salary alone. Helen assumed that, as James’ wife, she would be able to access his bank accounts, but without an LPA for property and financial affairs in place, she has no authority to do so. 

It is a sad irony that, if James had died, it would potentially have been easier for Helen to access his accounts, as his executor or administrator, than while he remains alive but incapacitated. 

Helen asks whether she can put an LPA in place for James following his accident, but unfortunately this can only be done while the person has mental capacity and clearly James does not. Helen’s only option is to apply to the Court of Protection to be appointed as James’ deputy (similar in a number of ways to an attorney), but this is expensive and takes months. In the meantime, Helen will be in grave financial difficulties, which is the last thing she needs while she worries about James and looks after their children and home singlehandedly. 

These financial problems could have been avoided if James had had an LPA authorising Helen to access his finances. LPAs should be viewed as a form of insurance and crucial for people of any age, something to put in place and hope you never need, but which would be invaluable if you had an accident or sudden illness. 

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