legal 180x120The process of making Lasting Powers of Attorney was introduced in 2007, but crucial changes to the forms used to create the Property & Financial Affairs and the Health & Welfare LPA have recently come into effect. Here, leading legal expert Annabel Kay looks at the implications for those seeking to plan ahead in the event of their changing circumstances and mental health condition:

It is a fact: we are getting older. As a nation, older people are going to make up a much larger proportion of the population in the not too distant future. The number of over 80s, for example, is set to more than double from 3m in 2012 to 6.1m in 2037.

As we age and we live more and more hectic, full-on lifestyles, the risk of losing our mental capacity increases. Mental incapacity can occur as a result of the illnesses associated with older age or as the result of an accident. As adults, managing our own affairs is something we take for granted, and to have that taken away whether on a temporary or permanent basis can have devastating consequences.

Where someone loses the capacity to manage their own affairs and there are no suitable arrangements in place, then it is likely that an application to the Court of Protection would be made. This will seek to appoint someone to manage the person’s affairs; a relatively expensive and lengthy process according to Annabel and one which leaves the person with no control over who is appointed. But there are things that can be done to plan ahead.

To allow others to assist in critical times and for the long term, a legal document called a Lasting Power of Attorney (LPA) can be created whilst you are still well and active. Making an LPA provides you with the opportunity to appoint a person (called an Attorney), to make the important decisions on your behalf.

There are currently two types of LPA available: Attorneys may be appointed to make decisions regarding health, wellbeing and care when the person no longer has the mental capacity to make those decisions for themselves. In addition an Attorney can be appointed to manage property and financial affairs. A person can make one or both types depending on individual circumstances.

Your Attorney should be a sensible adult who you know well and trust. They must always act in your best interests and in accordance with the principles laid down by law; if they fail to do so, there can be serious repercussions. You can choose more than one Attorney and your Attorneys can be members of your family if you wish.

It is possible to limit the scope of the power given to your Attorney by including preferences and instructions outlining how you would like your Attorney to act. Preferences and guidance can include the considerations they should bear in mind and the people they should consult for further guidance about you if necessary. Including such guidance is often reassuring for the Attorney and can give peace of mind to you to know that you have given clear instructions for future use.

The process of making LPA was introduced in 2007, however the forms used to create both the Property & Financial Affairs and the Health & Welfare LPA have changed over the years and will be altered again in July this year.

The new forms of LPA come into effect on July 1, but any LPA prepared on the existing forms can still be used so long as they are all signed up before 1 January 2016.

Generally the format of the new LPA is much simpler and much of the guidance and notes on the existing form are now included in a separate guide. However, although the new forms of LPA have been introduced to make the process more straightforward, the new forms still amount to 20 pages and I strongly advise that anyone considering this important step of planning for their changing circumstances seeks specialist advice on the practicalities of how they will operate for you in the future.

If you would like more information on Lasting Powers of Attorney, the new forms or how having an LPA may be of benefit to you please contact