Why is having a Power of Attorney important?
A lasting power of attorney (LPA) is a legal document which enables one or more appointed individuals to make decisions on your behalf such as paying bills or deciding where you should live if you lose the capacity to do so. This can include, for example, where an individual is suffering from a debilitating health condition such as dementia. Unfortunately, loss of capacity may occur at any age due to a serious accident or unexpected illness and so having an LPA ensures that the people you trust are able to make important decisions about your life should this happen.
What happens if an LPA is not in place?
An LPA can only be created whilst you have mental capacity. If an LPA is not in place and you have lost capacity, it is much harder for loved ones to make decisions on your behalf. An application to the Court of Protection to appoint a Deputy would need to be made, to access the same rights as those under an attorney status. This can be both a time-consuming and costly process for those caring for you, which can be avoided if an LPA exists. Additionally, setting up an LPA allows you to choose your own attorneys, meaning these can be people you trust with the most important decisions, providing great peace of mind.
What happens if an LPA is completed incorrectly?
Around 15% of LPA forms received by the Office of the Public Guardians are subject to errors. Common mistakes include, for example, contradicting instructions, misplaced signatures or ambiguity surrounding decisions on life sustaining treatment, a part of the document which is taken very seriously by Parliament. If an LPA document form is incorrect, it may not take effect as intended and the power to make decisions may be struck out.
The case of Office of the Public Guardian –v- PGO and Ors, re: BGO illustrates the importance of executing LPAs correctly. In this case it was found that an attorney had acted as a witness to the Donor making the LPA which invalidated the document. However, by the time this was noticed, BGO lacked capacity and so a new LPA could not be made and instead an application to the Court of Protection to appoint a Deputy was required.
Completing an LPA form with our solicitors can help clients avoid these issues.