Many people seem to confuse a Will with a Lasting Power of Attorney (LPA). There is a huge distinction between the two. Life and Death!
Your attorney must be someone you trust to manage your affairs for you. It may be your spouse, your cohabitee, your children or a really close friend. It is always better to have more than one attorney if possible. That way if one attorney is too ill to attend to your affairs, or is overseas for a period of time, then the other can carry on assisting you.
A will is completely different; it only comes into effect after your death. A Lasting Power of Attorney comes to an end upon your death. So if you have both, and you really should, one takes over from the other. It is not necessarily the case that your attorneys are also the executors of your will. The vast majority of our clients appoint us as executors to manage their estates on behalf of their families.
They do this for a number of reasons; We can act quickly, we know what we are doing, we are not emotionally involved, so we are not held up by the grieving process, we in effect take over and run things on behalf of you and your family at a point in life when you are very distressed.
We have set procedures that we follow when dealing with an estate. Eg. empty house insurance, obtaining money from the bank to pay the undertaker - thus removing immediate financial pressure. But all of this is an aside; my message is about the need to make an LPA.
There are in fact two types of LPA, Health and Welfare, which dictates where you live, care home, at home, nursing home, your wishes when in severe ill health, including whether or not your attorney should make decisions about life-saving treatment.
The other type of LPA relates to your finances. This is the type that most of you will know about. It permits your attorney(s) to manage your bank accounts, deal with gas, electricity, telephone providers, council tax, house insurance etc. All of the things that need to be attended to on a daily basis but which you may not have the mental or physical energy to deal with.
They think that making their will is enough. Unfortunately, circumstances can overtake you very quickly. Ill health does not hang around waiting until you have made an LPA! An old friend contacted me very recently, her father had just died, and her mother’s Dementia had become far more acute as a result. It is not uncommon for the carer of a person with Dementia to predecease the patient.
My friend was in a terrible state, she told me she had wanted to discuss her mum’s Dementia diagnosis with her and her father, and she had wanted both parents to make an LPA. However, she said that it would have felt like a cruel and invasive conversation. But now things were much worse; she needed to have her mother moved into a care home. It was too late to make an LPA because her Dementia was too advanced. Unfortunately, she did not have any legal standing. She couldn’t sign the forms enabling payment of the care home fees; she couldn’t sell her mother’s home to pay for the fees. She couldn’t access the money in her bank. As she sobbed she said that she shouldn’t have to be dealing with all of this, she just wanted to mourn the death of her father.
Instead, she was now going to start dealing with an application to become a Deputy under the Court of Protection. Paperwork that added to her stress at a time when what she needed was to feel calm. Because the family had not had the Lasting Power of Attorney conversation, things had been made so much worse for my friend. Is this what you want for your adult children, do you want them to have added stress if you can no longer manage your affairs? Just have the conversation, use this article as your conversation starter.
Another client also came to me very distressed; her mother had developed Vascular Dementia overnight. One moment her mother was fine, the next she was found running down the street in her nightclothes in the middle of the night. It was as fast as that. My client was obviously in complete shock, but things became worse.
Her local authority were very short of specialist Dementia care places. They advised that as my client had no legal standing, they would make the decisions as to care of her mother until such time as she became a Deputy.
This, of course, is wrong on so many levels. I was battling away with the local authority, and at the same time, I also applied to the Court of Protection to have my client appointed as a Deputy. This took some months, even though the matter was allegedly expedited. As you can imagine, many people in this situation need their application to be dealt with on an emergency basis.
In short, the mother, in this case, languished in an unsuitable care home. The day the Deputyship Order arrived was the day my client arranged to move her mother to a more suitable establishment.
I think my message is clear - Have the Lasting Power of Attorney Conversation before it’s late!
If you need further advice about Lasting Powers of Attorney then contact us:
Lasting Power of Attorney Solicitors Newcastle: 0191 284 6989
Lasting Power of Attorney Solicitors Sunderland: 0191 567 6667
or email us: firstname.lastname@example.org
Or complete our Online Enquiry Form
You can also park opposite our Sunderland Office on John Street.