Most of us know that we need a will so that our wishes are followed when we die. If you die without a will, intestacy law stipulates how your estate is distributed, regardless of whether that distribution is what you would have chosen.
Despite that, many people have “never got around to it.” However, they are at least aware that they need a will, since for all of us death is inevitable.
Unfortunately, most people don't even know that they need a lasting power of attorney.
Something which is not inevitable, but is a real risk for many of us is “losing our minds” or, in legal language, losing mental capacity. That means becoming no longer able to take decisions about your own affairs because you can no longer think properly.
We know that many people become senile over the years, suffering from various types of dementia such as Alzheimer’s disease.
Sadly, we can also lose mental capacity almost instantaneously. For example, by suffering a severe head injury in an accident or by our brain being seriously damaged by a stroke.
This happened to one of my friends.
He suffered a massive stroke and was instantly incapable. He never recovered although he did not die for about 15 years. In between, he was taken care of at home. Sadly, he was never well enough for any of his friends to visit him or to attempt to communicate with him by telephone. I never saw him after his stroke. He was of course completely incapable of managing his affairs.
The loss of mental capacity gives rise to serious problems.
If your family’s money is in a bank account in your sole name, if you lose mental capacity your husband or wife cannot take any of it out. If you own an investment in your name, your husband or wife cannot sell it.
There are legal processes to address such situations. However, they are very slow and very expensive. Essentially, you have to get an order from the Court of Protection, which can cost thousands of pounds and is very slow. My friend's family experienced this after his stroke.
Because the above problems affect many people, the law caters for it. It allows you to make what is called a lasting power of attorney, (“LPA”).
An ordinary power of attorney gives someone else legal ability to do things that otherwise only you could do, such as signing cheques on your bank account. The difference with an LPA is that it need not take effect until you lose mental capacity. Then, and only then, does the LPA become effective.
Better still, because so many people need an LPA, the government has produced model documents which you can download and complete as I did in 2012. Indeed you can now complete the documents online.
My wife and I created LPAs almost 9 years ago, in 2012. Each of us completed two documents:
For simplicity, I will write only about myself. Everything applies equally in my wife’s case for the documents that she has signed.
Each document allows my attorney to take decisions and actions on my behalf (including signing cheques, legal agreements, etc.) if I have lost mental capacity.
My attorney is my wife.
However, I had to consider whether my wife might be deceased herself, or mentally incapable, at the time that I lost mental capacity. Accordingly, I have named four replacement attorneys who are my four children, all of whom are adults.
The LPA only takes effect after it is registered. The relevant forms are free to download and complete. However, there is a fee for registration, currently £82.
Nevertheless, I regarded registration immediately as essential, so the four documents mentioned above were all sent off for registration after completion, rather than deferring registration until either I or my wife had lost mental capacity.
The reason is a very practical one.
If I had made any mistakes in completing the documentation, those would be pointed out by the Office of the Public Guardian (the government department that deals with registrations) and I could easily amend and resubmit the documents. (From memory I believe one of the documents did need resubmission.) At worst, I would have to pay another registration fee.
However, if the plan was for the LPA to only be registered after I had lost mental capacity, I needed to be 100% certain that the LPA contained no mistakes. The reason is that if the Office of the Public Guardian identified mistakes when my wife or other attorney tried to register the LPA after I had lost mental capacity, those mistakes could not be fixed, because I would not have the mental capacity to make any changes to the document. At worst, the mistakes might be so serious that the LPA was invalid and therefore could not be registered.
In my opinion delaying registration of the LPA “until it was needed” would have been extremely risky, and a terrible false economy. I much preferred paying the registration fees immediately for the peace of mind of knowing that the LPA is complete and correct, and has been fully registered.
That applies even if the LPA is never needed, as I hope to retain mental capacity until I die.
Technically, because my LPA has been registered, my wife could use it now to act as my attorney. I have no problem with that, since I trust her completely. In practice of course she has no intention of using the LPA until it is needed.
However, as a precaution, the documents which appoint my children as replacement attorneys all contain the express provision “This LPA can only be used by my replacement attorneys if they have written medical evidence that I lack mental capacity.”
If you have not created LPAs, I believe that you should. As mentioned above, loss of mental capacity can happen instantly, without warning.
As always with articles on my website, this page does not constitute professional advice, and I accept no responsibility to anyone who acts, or refrains from acting, as a result of reading it. There is a disclaimer in the footer on every page of my website.
Finally, this article relates only to England & Wales. The Government’s LPA website explains that the procedures differ in Scotland and Northern Ireland.
Obviously foreign countries all have their own laws.