Do I Need a Lasting Power of Attorney – Ask an Expert

“I have a Will and have been advised to also get a Power of Attorney. Do I really need a Power of Attorney and a Will?”

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Let me start out by stating that a Will and a Lasting Power of Attorney are very different things.

A Will is a document that tells a person that you assign, and third parties, what you want to happen with your possessions and assets after you die. You can leave specific instructions in a Will and a Will protects what you own, but it is specifically created for events after your death.

However, a Lasting  Power of Attorney is created to protect your interests while you are still alive.

In essence, by setting up a Lasting Power of Attorney, you give someone you trust the authority to make decisions and to act on your behalf and in your best interests if you lose capacity to do so. This could mean either:

• A temporary situation, for example, if you’re in hospital and need help with everyday tasks such as paying bills
• A longer-term plan if, for example, you have been diagnosed with dementia and you may lose the mental capacity to make your own decisions in the future

It’s a common scenario where a person hasn’t made a Lasting Power of Attorney and then loses capacity. In these circumstances it’s too late to make a Lasting Power of Attorney and instead those left caring for an individual must take on a lengthy and expensive application to the Court of Protection.

Do not assume that if you are married or in a civil partnership that your spouse would automatically be able to deal with your bank account, bills and pensions, and make decisions about your healthcare, if you lose the ability to do so. This is not the case. Without a Lasting Power of Attorney, they won’t have the authority.

If you also arrange a Health and Welfare Lasting Power of Attorney, your attorneys can protect your interests by having authority to make decisions about what medical treatment is in your best interests. This could include negotiating about the right care package for you.

In conclusion, a Will is vital in order to protect your possessions and your family after you’re gone, whilst a Lasting Power of Attorney is vital in order to protect you whilst you’re still with us. I would recommend having both a Will and a Lasting Power of Attorney, not one or the other.

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Answered by Lindsey Rawson, Partner & Head of Wills, Trusts & Probate.

If you would like to submit a question to be answered by an legal expert, please email ross.holliday@howellsllp.com or DM us on social media

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