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Whenever I talk to clients about making a will, I always talk to them about why they also need a Lasting Power of Attorney (LPA). Certainly, during your lifetime, an LPA is far more useful to you and your family than your will. 
 
Your will, and your wishes contained in your will, only take effect when you die. So this leaves a big gap - if during your lifetime you lose mental capacity what happens to decisions about your health and welfare and ensures all of your bills are paid? 
 
An LPA is a legal document which allows you to appoint people you trust to act for you if you lose mental capacity. Most importantly YOU choose who will be able to make decisions and you are able to set out how you would like decisions to be made. Until you lose mental capacity you will continue to make decisions as you have always done. 
Whenever I talk to clients about making a will, I always talk to them about why they also need a Lasting Power of Attorney (LPA). Certainly, during your lifetime, an LPA is far more useful to you and your family than your will. 
 
Your will, and your wishes contained in your will, only take effect when you die. So this leaves a big gap - if during your lifetime you lose mental capacity what happens to decisions about your health and welfare and ensures all of your bills are paid? 
 
An LPA is a legal document which alows you to appoint people you trust to act for you if you lose mental capacity. Most importantly YOU choose who will be able to make decisions and you are able to set out how you would like decisions to be made. Until you lose mental capacity you will continue to make decisions as you have always done. 
 
So let's explore what happens if you don't make an LPA; 
 
"We are married and everything is in joint names - we don't need one!"  
 
Contrary to popular belief, just because you are legally married does not mean your spouse will be able to make decisions on finances or health and welfare. Without an LPA, appointing your spouse (and/or other people you trust) any assets in your name (even if they are joint) could be frozen, leaving your spouse unable to pay bills, pay for any care you need or manage the finances. In addition, even though your spouse may also be your 'next of kin', they will not be able to make any decisions about your medical care or treatment. At an already emotionally upsetting and stressful time, this is highly likely to cause huge distress to your spouse and family. 
 
Have you ever considered what would happen if you lost mental capacity through accident or illness? The phrase I hear, time and time again (and I apologise if it sounds insensitive) is "if I am on life support and there's no hope, switch me off." Did you realise that without a Health and Welfare LPA, nobody has the legal ability to make those decisions. Our medical professionals have a duty of care to maintain life. But the legal/medical definition of 'life'is likely to differ from your own views. 
 
I've used the example of a married couple, as the majority of people are misinformed that the law provides protection if you are married. And it does..... if you die. Your rights are, to some extent, looked after if your spouse dies - without a will, your spouse would be entitled to a large proportion of your estate. However, the law does not extend to the loss of mental capacity during your lifetime. 
 
If you are single or part of a co-habiting couple, you will find yourself in the same position I have described above, but you are probably more aware of this as you have not entered into a legally binding relationship with somebody. 
 
So, with no LPA, if you lose mental capacity what happens? 
Your spouse, or another relative, can make an application to the Court of Protection to become your Deputy. As well as being costly (application fee, court fees and ongoing fees) the application process is also very lengthy, usually six to eight months. This can be sped up by appointing a Professional Deputy but it is still likley to take several months. Your Deputy may not have been the person you would have chosen yourself and they will be subject to supervision and annual reporting and fees. 
 
Another thing I hear fairly often is "I'm too young to make an LPA, I'll do it when I'm older/when I need it". The saying 'there is no time like the present' is particularly true when it comes to drawing up an LPA. The time to do it is when you are healthy and of sound mind. None of us know what is round the corner. 
 
In 2016/17 there were 348,353 UK admissions to hospital with Acquired Brain Injury (ABI) - that's 531 admission per 100,000 of the population * 
ABI Admissions have increased by 10% since 2005/6 * 
In 2016/17 there were 132,199 admissions to hospital for stroke, an increase of 10% since 2005/6 and equates to one every four minutes * 
Dementia affects approximately 850,000 people in the UK ** 
1 in 3 peopleborn in the UK will develop Dementia in their lifetime ** 
In 2018, a 23 year old man was diagnosed with Dementia, believed to be the youngest person in the UK *** 
 
* www.headway.org 
**www.dementiastats.org 
***www.homecare.co.uk 
 
The popular money saving expert, Martin Lewis OBE, has confirmed in articles and TV interviews hat he has LPAs in place himself and it's essential to make them while you are young and healthy. 
 
In summary, if you haven't made a Lasting Power of Attorney (or its predecessor the Enduring Power of Attorney) then please consider the impact this could have on you and your family and talk to an expert who can advise you. 
 
Ally Ilott (Partner) 
 
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