Excuses People Use to Avoid Making a Durable Power of Attorney and Why They Are Wrong

Establishing a durable power of attorney (LPA) is a necessity in today’s society. But despite this, many people have nothing in place in case the worst happens and need someone to step in and manage their finances and well-being.

A power of attorney is a document that allows someone you designate to step in and manage your finances if you are not mentally capable of doing so.

Losing our ability is not something any of us like to consider a possibility, however it is something that can happen to anyone and we all need to be prepared. Some profitable actions now can save a great deal of time, expense, and emotional discomfort at a later date. Like if you lose your capacity without having an LPA, then your next of kin will have to go down the path of getting a guardianship, which is a long and very expensive process.

Again, even though this is a basic fact, many people still make excuses for not granting power of attorney.

Some of the excuses I’ve heard include:

I’m too young to need a durable power of attorney, those are for seniors.

No they are not, you are never too young to need an LPA. When people think of losing capacity, most of us think of older people with dementia, however, losing capacity is not something that only happens to the elderly, and there are ways other than dementia to lose our capacity. There are many ways to lose mental capacity, illness, car accident, accident/medical malpractice or assault are just some of the unfortunate events that can lead to loss of capacity and these can occur at any age.

Durable powers of attorney give other people a lot of power

No, lawyers can’t do what they want. You nominate your attorneys, and hopefully that means you’ll nominate someone you can trust, and if you get into a fight or mishap in the meantime, you can modify your power of attorney at any time before it’s registered. You can also set limits on what your attorneys can and cannot do in the document. If you don’t want them to be able to sell your house, for example, you can stipulate that. In addition to being in control of what attorneys can and cannot do through the document you sign, attorneys are also required by law to always act in your best interest, and there are repercussions if they fail to do so.

If I make a durable power of attorney, I have to file it right now, I’ll wait until it’s needed.

No, it’s entirely possible to write and sign an LPA, but keep it until you want to use it. This is because in order for an LPA to be used it must be registered, until it is registered it is just a piece of paper. So you can make one when you’re 30 and not register it until you need it in your 70s. Waiting until the LPA is needed is very dangerous, as you cannot do a power of attorney when you have lost capacity.

To grant a power of attorney, the person granting it must have capacity. They must be able to understand and agree to what they are signing.

A durable power of attorney doesn’t last forever, so what’s the point?

There are different types of power of attorney, LPAs are permanent, but an ordinary power of attorney is not. An ordinary power of attorney is a document that you can set up to allow someone to take care of your affairs while you are unable to, for example, if you are out of the country, cannot leave your home, or are in the hospital for a while. This document gives another person the authority to act on your behalf. It is only valid while you still have the mental capacity to make your own decisions about your finances. You can limit the power you give your attorney so that they can only handle certain assets, for example, your bank account but not your house.

I can only have one lawyer and I don’t want to choose, it will cause fights in the family.

No, you can have more than one lawyer. The role of lawyer is difficult at times and there is a lot of responsibility. So you can spread that out by having more than one attorney. This is called a joint attorney. You can name any number of attorneys-in-facts in a single durable power of attorney, and you can specify whether they can act separately or if they must act jointly and jointly. You can have them act jointly on some matters, such as property sales, but have them act individually on all other matters. There is a lot of flexibility and it is entirely up to you.

It is too expensive to establish a durable power of attorney

It may have been expensive at some point in the past, but these days it really isn’t. you can hire a solicitor to do it for you at a fixed fee, usually a couple of hundred pounds. Or you can try it yourself by using the government website which guides you through the process by asking basic questions and completing the form on your behalf. It then provides you with instructions on how to sign the document so that it complies with the regulations.

As you may have noticed, the excuses people make to avoid LPAs are just plain bogus. Most people don’t have an LPA waiting in the wings simply because it’s one of those jobs that is often pushed aside for later, written off as unnecessary, or deemed too expensive.

You should now have a much clearer understanding of why a durable power of attorney is essential.