Most of us travel without thinking about what would happen at home if we fell ill or had an accident. If something left you unable to make decisions, who would pay your bills, speak to your bank or help plan your care? A Lasting Power of Attorney (LPA) answers that question. However, you have to make it before you need it, which is why it is worth sorting out an LPA before travelling.
Your Will only takes effect after you die. Your LPAs work while you are still alive. That is exactly when your family may need the authority to help you.
The scenario nobody wants to consider
Imagine you are abroad, on holiday, visiting family or on a longer trip. You have a stroke, a serious accident or a sudden illness. You are in hospital receiving treatment, but you can no longer make decisions or communicate clearly.
At home, life carries on. Bills arrive, your mortgage or rent falls due and your bank needs instructions. Your family cannot easily reach you, get your signature or check your wishes.
Without LPAs, your family has no general legal authority to manage accounts in your sole name. They also have no general authority to speak to your mortgage lender for you or make decisions about your care. A joint account holder can usually still use a joint account, but that rarely covers everything. However much your family wants to help, they may find doors closed to them.
What a Lasting Power of Attorney actually does
A Lasting Power of Attorney is a legal document that lets you appoint one or more people, called attorneys, to make decisions on your behalf. In England and Wales there are two types.
Property and Financial Affairs LPA
This covers your money and property: bank accounts, bills, pensions and benefits, investments, tax and, if necessary, selling property. Once registration is complete, you can let your attorneys use it with your permission, even while you still have capacity. If you prefer, you can say it should only be used if you lose capacity.
For anyone who travels or spends long periods abroad, that flexibility can be very useful. Your attorneys can deal with something urgent at home while you are away, and you can still make your own decisions while you are able to.
Health and Welfare LPA
This covers decisions about your medical treatment, personal care and where you live. It can only be used when you lack the capacity to make the decision in question yourself. You can also choose whether your attorneys may make decisions about life-sustaining treatment. That is a personal choice, and one worth discussing with the people you appoint.
Most people put both types in place, because they cover very different parts of life.
The deputyship alternative
If you lose capacity without LPAs in place, your family may need to apply to the Court of Protection to become your deputy. The court then decides who can make decisions for you.
Deputyship applications often take many months. Until the court appoints a deputy, your family may be unable to deal with accounts and assets in your sole name. That remains true however urgent things become. There is a court application fee. The deputy also usually pays a yearly supervision fee to the Office of the Public Guardian. Many families also pay for legal help with the application. GOV.UK sets out the current court and supervision fees.
Deputies are also closely supervised. They must report regularly and may need the court’s permission for some decisions that an attorney could make. Instead, an LPA made while you have capacity lets you choose the people you trust, rather than leaving the choice to the court.
Situations where LPAs make a real difference
For example, imagine someone has a stroke while on holiday in Spain and can no longer speak or make decisions. Their spouse needs to arrange repatriation, plan ongoing care and keep the household finances running. Without LPAs, the spouse may have to apply for deputyship before they can deal with accounts in their partner’s sole name.
Or imagine a parent who loses capacity and needs to sell their UK home to pay for care. Without a Property and Financial Affairs LPA, nobody can sell it on their behalf until the court appoints a deputy.
Choosing your attorneys
Your attorneys step into your shoes if you cannot act for yourself, so they need to be trustworthy, capable and willing.
If you appoint more than one, you choose how they act. Acting jointly means they must all agree on every decision. This gives a check on each other. However, it can be impractical if they live far apart or a decision is urgent. Acting jointly and severally means any of them can act alone or together. This is more flexible, but it relies on trusting each of them. You can also choose a mix, so your attorneys make some decisions jointly and others jointly and severally.
Many people appoint different attorneys for each LPA. The person best placed to manage your money may not be the person who best understands your wishes about care. It is also sensible to name replacement attorneys. That way the LPA still works if a first choice can no longer act.
Common misconceptions
“LPAs are only for older people.” Loss of capacity can happen at any age. You can only make an LPA while you have capacity, so waiting can mean leaving it too late.
“My spouse can decide for me anyway.” Being married or in a civil partnership does not give your spouse or partner authority over your finances or medical treatment. Without an LPA, they have limited authority.
“I’ll lose control.” You decide whether a Property and Financial Affairs LPA can be used while you have capacity, and you can still make your own decisions while you are able. A Health and Welfare LPA can only be used when you lack capacity for the decision.
“It’s too expensive.” The Office of the Public Guardian (OPG) charges £92 to register each LPA, and some people qualify for a reduction or exemption. That is usually far less than the cost and delay of deputyship.
The registration process
An LPA cannot be used until the Office of the Public Guardian has registered it, so it makes sense to start well before you think you might need it.
- Prepare the LPA. You decide which type you want, who your attorneys and replacements are, how they should act, and any preferences or instructions.
- Sign in the right order. You sign first. Your certificate provider then signs to confirm that you understand the LPA and that nobody is pressuring you. Your attorneys and replacement attorneys sign after that. Everyone except the certificate provider needs a witness to their signature. If the order or witnessing is wrong, the OPG may reject the LPA. That means delay and starting parts of the process again.
- Register with the OPG. Registration currently takes around 8 to 10 weeks. Before registration, anyone you chose to notify is sent a notice and can raise concerns with the OPG.
- Use the registered LPA. Once registered, your attorneys can show organisations the registered LPA or a certified copy. The OPG also offers an online service that lets attorneys share proof of the LPA with banks and others.
Using your LPAs when you are abroad
If something happens while you are travelling, a registered Property and Financial Affairs LPA lets your attorneys deal with your affairs in England and Wales. For example, they can pay bills, speak to your bank and mortgage lender, collect your pension and look after your home. However, local rules may govern assets held in other countries, and organisations there may not accept an English LPA.
Health and welfare decisions are more complicated. If you are receiving treatment abroad, local law decides who can make medical decisions for you. Doctors there may not recognise your LPA. Once you are back in England or Wales, your Health and Welfare attorneys can work with your doctors and help decide where you live and what care you receive during recovery. Good travel insurance remains important for the immediate costs of treatment and repatriation.
What if you already have an Enduring Power of Attorney?
LPAs replaced Enduring Powers of Attorney (EPAs) on 1 October 2007. You can still use an EPA signed before that date. However, your attorney must register it with the OPG once you are losing, or have lost, capacity.
An EPA only covers property and financial affairs, not health and welfare. If you have an EPA but no Health and Welfare LPA, it is worth considering one. It is also worth checking that the attorneys you chose years ago are still the right people. If not, and you still have capacity, you can revoke the EPA and make new LPAs.
When to set up your LPAs
The best time to make a Lasting Power of Attorney is while you are well. That way you can think through your choices clearly. Some events make it more pressing. These include extended travel, especially to remote places, planned surgery or treatment for a serious illness, buying property abroad, or starting a business. The more complicated your affairs, the harder it is for your family to manage without proper authority.
How A.D.E. Wills can help
A.D.E. Wills prepares Lasting Powers of Attorney for clients in Oxford, Aylesbury and the surrounding area, and online. Edward will talk you through the two types of LPA and who might suit the role of attorney or replacement attorney. He will also cover how your attorneys should act and any preferences or instructions you want to include.
We prepare the forms carefully to reduce the risk of the OPG rejecting them. In addition, Edward guides you through the signing order and, if you choose, deals with registration and correspondence with the OPG for you. We charge a fixed fee for our LPAs, and you can see the options on our LPAs Pricing page. The OPG registration fee is separate.
If you would like to talk it through, call 01865 507174 or email info@adewills.co.uk. You can also read more about our Lasting Powers of Attorney service.
