Fresh perspectives on the use of Lasting Powers of Attorney
Lasting powers of attorney are not only for the elderly.
Many clients (and their advisers) have lasting powers of attorney, both for financial decisions and also for decisions relating to their health and care (LPAs). These are often put in place at the same time as wills are reviewed and updated. LPAs can provide reassurance that decisions would be taken by attorneys we have personally selected and trust, if mental incapacity were to overtake us at some point in the future, either as a result of an accident or with advancing years.
It is perhaps less well understood that financial LPAs potentially have a valuable part to play for individuals, often much younger, who may have difficulties looking after their own financial affairs because of a developmental disorder or a learning disability, or who may have fluctuating or partial capacity having been diagnosed with a serious mental health illness like bipolar disorder.
In many such cases the need to manage finances may be very limited in practice, especially if there is already an established trust structure, with trustees looking after the financial needs of vulnerable beneficiaries. But for other individuals, without the protection of a trust, the stress of negotiating their way through financial transactions, or trying and failing to do so, may only serve to heighten anxiety, to the detriment of their mental wellbeing. A financial LPA may offer a practical means of support.
Any individual whose understanding, for whatever reason, may be temporarily or permanently impaired, must be assessed as having the necessary capacity before they can create an LPA. This is an area for which particular expertise is required on the part of the solicitor working with them to prepare the LPA, and frequently a medical practitioner will be asked to assist by providing a medical opinion.
It is the ongoing role of the attorney, however, that needs to be highlighted here. The attorney must be committed to allowing and encouraging the individual to do as much as possible, but also be ready to act when the individual asks them to, or to step in if they lack capacity. There may come a point when the individual wishes to hand over responsibility for all decisions to the attorney, even those they still have capacity to make.
So whilst LPAs are clearly an effective type of ‘insurance policy’ against the possible loss of capacity in old age, they can also be used in a tailored way to support clients of a range of ages with particular and varying needs. Many parents worry about what will happen to a vulnerable adult child once they are no longer there to support them. An LPA may be part of the solution.