Do you have Lasting Powers of Attorney?

There could be many reasons or events in our lives, which may result in us finding it difficult or unable to deal with our affairs. We could suffer a sudden loss of capacity caused by a disabling accident or a catastrophic illness. As we get older the onset of physical disabilities, general frailty or dementia-related illnesses can affect our ability to make decisions.

Most of us believe that our next-of-kin would be able to make decisions for us, that a spouse can access the finances of the other and that close family will be involved in making medical and welfare choices for us, if we cannot.

In reality, that isn’t the case, unless you have set up a Lasting Power of Attorney.

If Lasting Powers of Attorney are not in place, decisions affecting your affairs may be made against your wishes or by people you do not want to be involved.

For as long as you are well, YOU can choose a person or persons that you can trust to make the right decisions for you. This person can continue to act for you even if you become mentally ill.

How is it done?

You complete a form of Lasting Power of Attorney appointing the person(s) you trust to be your Attorney(s). This document does not take away your rights; it merely gives extra rights to your chosen Attorney(s).

The Lasting Power of Attorney has been created by the Mental Capacity Act 2005. It replaces the system under The Enduring Powers of Attorney Act 1985. From 1st October 2007, only Lasting Powers of Attorney may be created.

There are two types of Lasting Power of Attorney (LPA):

1)          A Property and Financial Affairs Lasting Power of Attorney allows the Attorney(s) to make decisions on your behalf relating to financial matters. Once registered, the Attorney can help make decisions about whether or not you have capacity.

2)          A Health and Welfare Lasting Power of Attorney allows the Attorney(s) to make decisions on your behalf relating to where you live and medical decisions but only if you do not have the capacity to make those decisions yourself

Who should I choose?

You should choose people you can trust to deal with your money and your property. You may choose friends, relatives or a professional advisor such as a solicitor.

If you are a business owner you can complete a separate Lasting Power of Attorney conferring authority on separate attorneys to deal with your business interests

Your attorney should be trustworthy and have the appropriate skills to make the proposed decisions. It should be someone in whom you have complete confidence.

If you choose more than one Attorney then you will need to decide whether or not the attorneys should make every decision together (a joint appointment), or be able to make decisions separately or together (a joint and several appointments) or be authorised to make some decisions separately and others together

What can an Attorney do?

You can choose the extent of your Attorneys’ powers.

Generally, the Property and Financial Affairs Attorney will have the authority to make decisions on your behalf in relation to all your financial and property matters. This means that he or she can collect pensions, deal with investments, draw money from your bank account to pay bills and even sell your home. The Attorney can only make decisions on your behalf, for your benefit and in your best interests.

Under a Health and Welfare LPA, the attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life-sustaining treatment on your behalf. The attorney may also be able to decide whether you remain in your own home or move into residential or nursing care and also more day-to-day decisions such as your diet, dress or daily routine.

What can an Attorney not do?

The Attorney cannot write a will for you. Medical and welfare decisions cannot be made for you unless you cannot decide for yourself. The Lasting Power of Attorney document can include other restrictions or conditions – it is up to you.

Registering the LPA

An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. There is a registration fee, and the registration process is likely to take several months.

Once registered, a Property and Affairs LPA can be used immediately but a Health and Welfare LPA can only be used if you have lost your mental capacity to make decisions.

Existing Enduring Powers of Attorney

Any EPA, validly made before 1st October 2007, can still be used but only in respect of your property and affairs. If you wish to give authority over your health or welfare you will need to make a Health and Welfare LPA.

What happens if I become mentally ill?

Before any decision is made on your behalf, your Attorney(s) will consider whether or not you have the capacity to make that decision. If you are not able to make the decision then the Attorney will decide for you in your best interests.

Your Attorney(s) can only act under a Health and Welfare LPA when you do not have capacity.

My relative is already mentally ill; what can I do?

Your relative can no longer create a Lasting Power of Attorney. Instead, an application can be made to the Court of Protection for a Deputy to be appointed for your relative. The Court will direct how the relative’s financial affairs can be dealt with. The procedure is more expensive and takes longer.

A Lasting Power of Attorney is a very flexible document and if drawn by an expert offers peace of mind. Hopefully, you will never need to implement it, but, in the unfortunate circumstances of you requiring it, at least you know your affairs will be dealt with by someone of your own choosing