Expert Eye: Don’t leave it late to make Lasting Power of Attorney
Thinking about what would happen if you were to lose mental capacity is scary, which is why we avoid it. Too often people wait for a life crisis to make them face up to this real possibility, but for some, by then it may be too late, writes James Bolton, of Larken & Co.
As a nation we are living longer but not always in perfect health. Research by the Alzheimer’s Society estimates that by 2040 there will be around 1.6m Britons living with dementia but a stroke, accident or other serious illness can all too quickly take away our ability to administer our personal affairs either on a temporary or permanent basis.
Any one of these possibilities would be more than enough for you and your loved ones to contend with. How much worse will it be if, on top of that, you fail to prepare by empowering someone to step in to make decisions on your behalf should the need arise?
A solution to this is a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
It is a legal document that allows you to appoint one or more trusted people, attorneys, to act on your behalf in the event of you being unable to make decisions yourself.
Once appointed, attorneys are legally empowered to represent you when you are unable to deal with matters yourself, making decisions on your behalf which they consider to be in your best interests.
What if I don’t have a Power of Attorney and lose mental capacity?
If you don’t make the necessary arrangements and become mentally incapable then you leave no one with the legal power to act for you. Don’t fall into the trap of thinking that your spouse or “next of kin” will be able to fill this void. Unless you have specifically granted authority under a Lasting Power of Attorney they will not be able to help.
Without a Lasting Power of Attorney, those who wish to act for you will first of all need to apply to the Court of Protection for a Deputyship Order. This can take many months to obtain and is more expensive and intrusive than making an LPA.
With no LPA in place your finances will be in a state of limbo until a Deputy is appointed as nobody will have authority to access your bank account and investments, manage property or pay your bills, medical expenses and care fees until such time as an order is issued. Even if you have a joint bank account, the bank has power to restrict access to funds until a Deputy is appointed.
Decisions in relation to your medical and welfare needs may be taken on a “best interests” basis by doctors or social workers and although family members may be consulted, they would not have legal authority to act on your behalf in the event of a disagreement.
What types of Lasting Powers of Attorney are there?
There are two types of Lasting Power of Attorney, each dealing with specific areas. While you may choose to have one only, to give all round authority both are required.
A Property and Financial Affairs Lasting Power of Attorney deals with issues involving money, including the sale or management of property and investments, accessing bank accounts and arranging for the payments of debts and liabilities.
Depending on your wishes these documents can be used before the loss of mental capacity, and this can be a very convenient way to delegate authority to your family or a trusted friend. If you operate a business, you may also consider having two powers, one for business affairs and another for personal matters.
A Lasting Power of Att-orney for Health and Welfare will empower your attorneys to act for you in discussions with doctors about medical treatment and dealings with social services in relation to your welfare needs and any care package that you may require.
Should you wish, the power can also include specific authority to consent to or refuse treatment of a life sustaining nature.
There are certain provisions and requirements common to both types of LPA. Each requires someone known as a “certificate provider” to confirm they have discussed the contents of the LPA with you and that you understand what it does. Before either document can be used it must be registered with the Office of the Public Guardian who will check that it has been completed correctly and is valid.
Although Lasting Powers of Attorney provide a simple solution to the issue of planning for the loss of mental capacity, they are very powerful documents and need to be carefully considered. Who should you appoint as your Attorneys? How should they act? What powers do you want them to have?
Your solicitor can advise you on what is be best for your circumstances and guide you through the process, but don’t delay as you may need a Lasting Power of Attorney to be in place sooner than you expect. For more information, contact James at Larken & Co Solicitors on (01636) 703333.
