Planning and playtime: LPAs not only for the elderly

There is a temptation for all of us to be so focused on the work which we do that we sometimes don’t appreciate the bigger picture.

Occasionally, however, we have the luxury of being provided with information that puts what we’re seeing on a local or personal level into a much more complete context.

Sometimes, that can give both reassurance and be a source of no little concern.

Such is the case with the latest package of data published by the Ministry of Justice (MoJ) on the caseload handled by family courts across the country (https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2025/family-court-statistics-quarterly-january-to-march-2025).

Amongst the mass of figures, certain details caught my eye; namely, in relation to the number of Power of Attorney documents which are put in place.

These are legal documents by which a person can appoint an individual whom they trust to make decisions on their behalf.

Historically, there used to be only something called an Enduring Power of Attorney (EPA) document, enabling the appointment of an attorney to manage someone’s financial affairs (https://www.gov.uk/enduring-power-attorney-duties).

That was replaced in 2007 by two types of Lasting Power of Attorney (LPA) documents, which not only allow you to nominate a friend, family member or professional to take care of your finances but make decisions about your medical treatment should you lose the mental capacity to do so yourself (https://www.gov.uk/power-of-attorney).

Even though they have been replaced, those EPA documents adopted before the new system was introduced are still regarded as valid.

From my experience and that of my colleagues and legal peers, Power of Attorney documents have certainly become popular as another instrument to regulate your affairs.

That much is illustrated from the most recent MoJ statistics. Back in 2008, only 57,997 EPA and LPAs were taken out. In 2024, just under 1.5 million documents were applied for – an increase of 28 per cent on the year before alone.

Just over half (54 per cent) of last year’s total were documents related to property and financial affairs and a similar proportion (56 per cent) of all types were put in place by women.

What I found particularly striking, though, was the continued bias when it comes to age.

Almost 93 per cent of Power of Attorney documents in 2024 involved men or women over the age of 55, compared to 97 per cent in 2008.

I think that is because people tend to associate LPA documents with the elderly. The mere mention of capacity is taken as meaning that they are only appropriate for those worried about degenerative conditions, such as dementia and Alzheimers disease.

There is little doubt about why the need for concern about those illnesses, given that they are leading causes of death in England and Wales (https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/deaths/bulletins/deathsregistrationsummarytables/2023).

Sadly, they can result in a gradual decline in capacity which ultimately leaves those afflicted unable to make even relatively basic decisions about their treatment or their finances, underlining the need for someone to act in their best interests.

Nevertheless, deterioration in mental capacity can occur when people are much younger than those currently accounting for the vast majority of LPA documents taken out in the UK.

People can lose mental facility through illness and accidents, not just dementia. Think, for instance, of the former Formula One motor racing champion Michael Schumacher, who suffered a catastrophic brain injury as a result of a skiing accident in 2013 (https://www.bbc.co.uk/news/world-europe-25545993).

Capacity doesn’t just refer to the brain but the physical ability to carry out certain necessary tasks. Quite often, these situations can arise because of a trauma suffered by individuals who had been young, healthy and active up to that point.

Research has suggested that there are estimated 4,400 cases of paralysis in the UK each year (https://www.spinal.co.uk/news/new-spinal-cord-injury-data-revealed/). That works out at one person being robbed of their physical capacity every two hours and means that roughly 105,000 in the country are forced to live with spinal cord injuries.

A separate study concluded that nine per cent of those aged between 18 and 24 who suffered a sporting injury were left with a permanent disability (https://podiumanalytics.org/media/r22d2ngv/qemqr6wawdxj00150b33-1.pdf).

In the United States, one piece of analysis found that skateboarding resulted in the most head and neck injuries – more than 129,000 over the course of the dozen years that the research was being conducted (https://archive.nytimes.com/well.blogs.nytimes.com/2014/03/31/with-the-thrills-come-extreme-risks/).

What that horrific toll shows is that it’s not only the elderly who are at risk of losing mental or physical capacity and needing someone to take sometimes simple and sometimes quite critical decisions for them.

Not determining who that might be or what you want to happen in advance means the potential of someone whom you don’t know or trust being appointed by a court and acting in a way which is not in accordance with your wishes.

Without doubt, the increase in the number of people taking out LPA documents is a good thing. More individuals now rightly regard them as another very useful part of a broader estate planning process.

Having said that, none of us can have absolute clarity about what circumstances – good or bad – await us at any stage of our lives.

I would argue that it is far better to take control of your affairs and actively explore the merits of an LPA document rather than have future situations beyond your control determine what will happen instead.