February 20, 2024
Zoe Southgate, partner and Head of Private Client services at Bates Wells & Braithwaite in Ipswich highlights how having a power of attorney in place may be the best thing you do for you and your family.
It is easy to plan for a good time. With the Christmas decorations packed away, it is not surprising that January is the busiest month of the year for booking the summer holidays. However, as we are after all, only human, we are significantly less efficient about planning for darker outcomes such as illness and end of life.
The media is full of tips on how to live longer. All this is excellent advice and making even small positive changes can impact on our health and the quality of our lives, especially as we get older. However, the truth is, that even those of us who follow every health trend, we cannot predict our futures.
As I write I am thinking of the plight of the TV presenter Fiona Phillips, who announced in 2022 that she had been diagnosed with early-onset dementia. We cannot ignore the fact that although our population is changing to reflect a greater proportion of older people as we live longer, the sobering consequence is that one in three of us is now going to get some form of dementia.
It is tempting to put our heads in the sand and resign ourselves to what will be will be. However, we can take an element of control and organise ourselves so that should the worse happen, we have a plan.
Key to this life plan is the legal document known as Lasting Power of Attorney (LPA). In a nutshell this document ensures that if you become unable to act or carry out wishes for yourself, that someone you legally appoint (your attorney) can act on your behalf.
There is a lot of confusion around LPAs. We are often approached by children of elderly saying that they want to take out an LPA. That is not the right way round. The person (donor) who is to be protected, in most cases the parents, has to be the ones to take the initiative. It is additionally complicated but also necessary to safeguard the vulnerable, that anyone making an LPA must have the required mental capacity as defined in the Mental Capacity Act 2005 for it to be legally valid.
There are two types of LPA: one for health and welfare and one for property and financial affairs. We recommend that these are considered together albeit with possibly different “attorneys” to appeal to different skills or circumstances of chosen individuals, most usually, trusted family members. Importantly, however, a health and welfare LPA only takes effect once the donor has lost their mental capacity. It is also worth noting that whilst still having capacity, a donor can also remove an attorney from an existing LPA.
I am often asked when at what age we should consider having an LPA in place. It is impossible to answer. However, if you want to ensure that it is someone who loves you who is making important decisions about your care and your finances, it is surely a case of better too soon rather than too late? And to focus your thoughts, maybe reflect on Fiona Phillips; she was only 62 when she received her diagnosis.
If we can advise you or your family on any of the issues or assist with wills, probate, deputyship applications or powers of attorney, do contact me at zoe.southgate@bates-wells.co.uk