Truth vs Fiction – The Reality of a Lasting Power of Attorney

Legal instruments are often misunderstood because of highly technical language when their purpose is to only help you. While the apprehension towards them is understandable, when read in context & explained properly, most misconceptions disappear. One such highly misconstrued legal document is the lasting power of attorney (LPA).

LPAs are documents that can be adapted to ensure you’re taken care of in the best way possible with every legal protection in place.

Yet, people often express mixed feelings towards LPAs, accompanied by a sense of dread as if it’s designed to steal away all sense of control & power from you. Quite the opposite, an LPA can be both a critical & an empowering legal tool.

To help you get a better understanding of LPAs, we’ll separate fact from fiction and attempt to set the record straight on what an LPA is.

1. Fiction – LPAs Are Not For Young People

Truth: LPAs are for people across all age groups. Once you understand the reasoning behind the purpose of an LPA, you’ll have little doubt. LPA’s were created as a protective instrument for people anticipating mental incapacitation.

Even if they didn’t anticipate it on account of potential illness, an unforeseen life circumstance can render them mentally incapable of making informed decisions.

This could come from different scenarios, like an accident that puts them in a comatose state, the early onset of conditions like dementia, or mental health issues like depression or schizophrenia.

It’s unwise to assume young people are protected from these when the truth is all of us are equally prone to these conditions.

Today, young people can easily make a lasting power of attorney online without too much hassle, allowing them to take better control of their future.

2. Fiction- A ‘Will’ Negates the Need For An LPA

Truth: LPAs and wills come into effect at different times and serve different purposes. If you’ve made a will, it will come into effect only after you pass away and your executors will receive the authority to execute your will only upon your death.

An LPA, on the other hand, will come into effect as soon as you authorise your attorney to, while you’re still alive. LPAs will expire upon your passing, and if you have a will, that will come into effect.

Both LPAs & wills can be revoked while the testator is alive & has sound mental capacity. However, if a will is revoked, it has to be replaced with a new will. Not doing this can subject the estate to a lengthy probate.

3. Fiction- Having Family Renders LPA Unnecessary

Truth: The assumption that having a loving family can render an LPA useless in matters of physical well-being couldn’t be further from the truth. While having a loving family is life’s best blessing, legally, they don’t always have the same rights as your next of kin.

A health or physical well-being LPA will help a trusted family member, friend or attorney make health decisions on your behalf in a respectful manner. Your attorney can ensure you’re taken care of as per your wishes.

Your religious beliefs, for example, will be taken into account when making medical decisions or more sensitive life-and-death situations.

The absence of a health LPA will allow doctors to make decisions for you with your best interests in mind. They are legally bound by law to do what’s best for you as a patient. This may sometimes conflict with your personal beliefs.

An LPA can clarify your stance regarding end-of-life care, tube feeding, organ donation and other sensitive health matters. Mentioning this in an LPA will help both your medical support staff & loved ones do the needful to honour your wishes.

4. Fiction-I Can Make An LPA anytime

Truth: It may come as a surprise but no, you can’t make an LPA anytime you wish. The most important consideration for making an LPA is to have sound mental capacity.

Unless you have found a way of predicting when you’re going to lose your mental capacity, it’s ill-advised to wait for an unreasonably long time to put an LPA in place.

However, in cases where people have been mentally incapacitated in the absence of an LPA, there is an option for a deputy to make decisions on your behalf.

It involves sending an application to the court of protection for deputyship. The court can appoint more than one deputy per person, in which case, it becomes a joint deputyship.

While this is a common occurrence, having an LPA in place can help avoid the lengthy process involved in appointing a deputy and the risk of the appointment of the wrong deputy. It’s also a fairly expensive process and could often cost more than setting up the LPA itself.

5. Fiction-Joint Property Ownership Doesn’t Need An LPA

Truth: Owning assets or property jointly doesn’t afford you any protection if one of you is mentally incapacitated. The common misconception regarding this is that in joint financial arrangements, a spouse or partner who is mentally capable can manage the property fairly on behalf of the other who is mentally unfit.

The truth, however, is that most financial institutions tend to suspend, freeze or set limits on joint holdings after they’ve been made aware of such mental incapacity.

In this case, your partner/spouse or any such individual in a joint account has to prove that they have the authority to act on your behalf. Not having an LPA in place to grant such authority can prove detrimental to the financial health of your spouse/partner/joint account holder.

Conclusion

LPAs can be incredibly useful instruments in granting authority and protecting your loved ones from undue legal processes. While this list is not exhaustive of all the misconceptions surrounding LPAs, we hope it helps you understand the importance of having one in place.