What is DNAR and LPA and why is it important?

September 30, 2022

British soaps are known for tackling issues faced by people up and down the country, in a bid to create awareness and highlight the importance of seeking help.

Emmerdale has recently been highlighting DNAR orders (do not attempt resuscitation) and LPAs (Lasting Power of Attorney) in a storyline centring around character Faith Dingle, who is terminally ill. With it becoming clear she won’t be able to make decisions for herself and wanting certainty that her dying wishes will be carried out, Faith seeks out the advice of the local village lawyer, Ethan. Armed with the knowledge that she doesn’t want to be resuscitated should the situation arise, she approaches her son, Cain, to inform him of her plans to hand over control to him by appointing him as her attorney.

Having conversations about DNAR orders and LPAs with loved ones is incredibly important. Without people having made their wishes clear and legally binding, they run the risk of medical professionals making the call for them.

With the latest census revealing almost one in five people in England and Wales are aged 65 and over, it’s clear we’re living much longer. It’s worth considering the benefits of putting a Lasting Power of Attorney in place for if you ever become unable to make your own decisions and manage your affairs.

An LPA is a legal document which allows you to appoint one or more people to make decisions on your behalf, should you lose capacity in the future. This could happen if you fall ill or suffer an injury.

If you don’t sign an LPA before losing capacity, your next of kin would have to apply to the Court of Protection for a Deputyship Order. This can be a complex, expensive and time-consuming process. LPAs can minimise distress for loved ones, as well as ensuring your wishes are carried out. In some circumstances, a Deputyship may be preferable due to the additional safeguards they offer.

There are two types of LPA: one for management of your finances and property, and another for health and welfare decisions. It’s useful to note that you can choose to appoint different people to act under the powers. People running their own business or in a partnership may need to create separate LPAs for their business and personal finances.

Clients sometimes ask: “why can’t I just do this myself?” To which we respond that they can – but be aware of the risks. SFE lawyers add value by advising on safeguarding clauses to protect you if ever needed. This is when you’re likely to be in a vulnerable position and could be at risk of being abused or exploited. They are specialised in this area of law and have years of experience helping people plan for later life.

Often close family members may be appointed as an attorney. In these circumstances incorporating appropriate and measured safeguarding clauses ensures they will act in your best interests. Unfortunately, for many of the cases that reach court, the evidence suggests that it can be family members who abuse their position of trust. Thankfully, these cases are rare, and with good advice and a well-drafted LPA this can be avoided.

In addition to advising you on safeguarding clauses, your Lawyer will be able to certify in the LPA, that you understand the document you are signing, the scope of the authority granted to your attorney and that no pressure or undue influence was brought to bear on you. They will also ensure there is nothing else which would prevent the LPA being valid.

LPAs are powerful documents. Your attorney can do just about everything you could do when dealing with your money and property. Therefore, it’s worth spending time considering who is the right person/s to act as your attorney/s, their values and beliefs, and what skills they have that ensure they do a good job.

The authority granted to your attorney/s will continue until your death – when it’s automatically terminated by operation of law, or until you revoke the power – which can only be done by deed, and is subject to your having mental capacity to do so.

Remember, an LPA is a deed and so cannot be amended after it has been validated by the registration process with the Office of the Public Guardian (OPG). To change an LPA, you would have to revoke the power and start again. This will add to the costs and so it’s important to get it right first time.

If you would like to speak to a local trusted and dedicated legal expert at Thomson & Bancks about setting up an LPA, contact our SFE accredited lawyer, Jemma O’Connor.

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