The Importance of Preparing and Registering Both Types of Lasting Power of Attorney to Protect Your Future

Many people believe that if they become unable to make decisions for themselves, their spouse or children will automatically be allowed to manage their affairs. However, this is a common misconception that can lead to significant difficulties for your family. Without a specific legal document in place, your loved ones have no automatic authority to manage your finances or direct your medical care.

A Lasting Power of Attorney (LPA) is a legal document that ensures the people you trust can act on your behalf if required. Relying on only one type of LPA may leave you vulnerable in certain areas of your life. To provide complete protection for your health and your assets, you should consider putting both types of LPA in place.

This guide explains the function of a Lasting Power of Attorney, the difference between the financial and health versions and the practical steps you can take to safeguard your interests.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows you to appoint one or more individuals to assist you in making decisions or to make decisions for you. These appointed individuals are known as your "attorneys."

An LPA must be made while you still have the mental capacity to understand what the document means. If you lose capacity due to an accident, illness or a condition, such as dementia, it is too late to create one. In these circumstances, your family would need to apply to the Court of Protection to gain authority, which is often a long and expensive process.

The Two Types of LPAs Explained

There are two distinct types of Lasting Power of Attorney. These documents cover different aspects of your life, and one cannot be used in place of the other.

Property and Financial Affairs LPA

This document gives your attorneys the authority to manage your money and property. You can choose to let your attorneys use this LPA as soon as it is registered or you can state that it should only be used if you lose the capacity to make your own decisions.

The practical functions of this LPA include:

• Paying your bills and managing direct debits.

• Collecting your benefits or pension.

• Selling your home to pay for residential care fees.

• Managing your bank or building society accounts.

Health and Welfare LPA

This document allows your attorneys to make decisions about your daily routine, medical care and where you live. Unlike the financial LPA, this document can only be used if you have lost the mental capacity to make these decisions for yourself.

The practical functions of this LPA include:

• Deciding where you live, such as a particular care home.

• Consenting to or refusing life-sustaining medical treatment.

• Making decisions about your daily routine, including diet and dress.

• Speaking with medical professionals to ensure your care wishes are followed.

Why You Should Have Both LPAs

It is common for people to make a Property and Financial Affairs LPA while overlooking the Health and Welfare LPA. There is often an assumption that if money is available to pay for care, the medical and personal details will be managed automatically.

However, having only a financial LPA creates a significant risk. For example, while your attorney could pay for a care home, they would have no legal right to choose which one. In this situation, healthcare professionals or social workers may make decisions about your treatment or living arrangements that do not align with your wishes.

By making both types of LPA, you create a comprehensive plan. This allows your attorneys to ensure that your financial resources are used to support the specific healthcare and lifestyle choices you would have made for yourself.

The Myth of Automatic Next-of-Kin Rights

One of the most persistent myths in this area of law is that a "next of kin" has automatic legal rights. Spouses, civil partners and adult children do not have the authority to make decisions for you without a registered LPA.

The consequences of this were shown in a reported case involving Dorothy Cook. Although she had been married to her husband for 49 years, she found herself without legal authority when he was hospitalised with a neurological disease. Because there was no Health and Welfare LPA in place, Mrs Cook was unable to take part in decisions about his discharge and care plans, despite being his primary caregiver.

Legal ties, such as marriage certificates, do not provide the same protections as an LPA. Registering these documents is the only way to ensure your wishes are carried out by the people you trust.

Securing Your Future Arrangements

Planning for a time when you may not have the capacity to make decisions is a practical step that ensures you remain in control of your future. By establishing both a Property and Financial Affairs LPA and a Health and Welfare LPA, you protect your assets and your personal wellbeing while reducing the strain on your family.

If you would like to discuss putting Lasting Powers of Attorney in place, please contact our private client team on 01892 662233 or reception@dwlaw-online.com.

Written by Elizabeth Shepperd - Solicitor