It’s Time to Think About Having a Lasting Power of Attorney
Are you concerned that a loved one may soon lose ability to look after their financial affairs because of mental incapacity?
Mental and physical incapacity can hit at any time. We all know that we should write a Will, but too few of us know we should also consider something called a Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more people to make a decision on your behalf to look after specific aspects of your financial affairs or your health and welfare should you lose the capacity to do so. It’s not just for the elderly; younger people may become incapacitated through accident or illness.
If you do not have an LPA in place and later become mentally incapacitated, relatives may face long delays and expense in applying to the Court of Protection to get access and take control of your assets and finances.
LPA’s are designed to be recognised by financial institutions, care homes and local authorities, as well as tax, benefits and pension authorities.
There are two types of LPA:
LPA for Property & Financial Affairs
Your attorney can use the Property & Financial affairs LPA while you still have mental
Capacity and you can state in your LPA application that you only want it to come into force if you lose capacity. An Attorney can make decisions on things such as buying and selling your home, dealing with your bills, investing money, arranging repairs to your property, running your bank accounts. It can restrict the types of decisions your Attorney can make but if you wish to do so you can allow them to make all decisions on your behalf.
LPA for Health & Personal Welfare
With a Health and Personal Welfare LPA, decisions can be made such as where you live, your medical care, what you should eat, how you should be treated medically and who you should have contact with. It can also give permission for your Attorney to make decisions about life saving treatment.
The key difference is that with an LPA Property & Financial Affairs this can be used while someone still has capacity, whereas with a Personal Welfare LPA this can only be used once they have lost capacity.
In the event you lose mental capacity and you do not have a Health & Welfare LPA, any decisions about your healthcare will be made by doctors who will make a decision based on your best interests. They will consult with your family but the final decision will rest with the medical staff. If you do not wish to have the doctors to make these decisions then you should have an LPA.
The person who you appoint to manage your affairs is called an Attorney.You may choose anyone you trust as your Attorney, provided they are over 18, not bankrupt and they are willing to take on the role. This is a serious responsibility. It is their duty to make all decisions in your best interests and they must follow certain principles which are set set out in the Mental Capacity Act which are aimed at making sure you are encouraged to make your own decisions where possible. As a donor you can restrict or specify the types of decisions the Attorney can make, or you can allow them to make all decisions on your behalf.
To protect your interests, an LPA must be signed by a certificate provider – a solicitor or someone else of your choosing – who certifies that you understand the LPA and have not been pressurised into signing it. You could choose close friends or relatives (other than your chosen attorneys) who must be formally told that you are setting up an LPA and given the opportunity to raise any concerns.
If You Don’t Have a Power of Attorney
In this event your relatives would need to apply through the Court which would be a long and costly process. Carers would need to apply to the Court of Protection. The Court would appoint a Deputy to make choices about the persons finances, which would usually be a family member or close friends. If you do not have an LPA in place and later become mentally incapacitated your relatives may face long delays and expense in applying to the Court of Protection to get access and take control of your assets and finances.
If no provision has been made for an LPA, or if the person has lost the capacity to do so, Geoffrey Lurie Solicitors can assist and advise you on the procedure for the necessary applications, prepare the paperwork and even provide representation at Court hearings. We can help assist the family throughout the entire process.
For a free confidential and no obligation conversation regarding Lasting Power of Attorney or Court of Protection Applications, please speak to our specialist solicitor on 0191 466 1444 or click the “Get in Touch” button and complete the form.