Lasting Powers of Attorney
Many of us associate the loss of mental capacity with conditions which typically affect the elderly, such as Alzheimer’s disease, other forms of dementia, the effects of a stroke and degenerative illnesses such as Parkinson’s disease. Not only can these conditions also affect younger people, but there is a wide range of conditions and injuries which can cause temporary or permanent loss of mental capacity at any age.
Various types of cancer and its treatment, drug and alcohol related conditions and brain injuries very often result in a temporary or permanent loss of mental capacity. Increasingly, many of the activities we engage in also carry a risk of head and brain injuries. Injuries sustained in motorbike and horse riding accidents, for example, very often result in a temporary or permanent loss of mental capacity.
We help our clients put arrangements in place so that they have a ‘Plan B’ should the unforeseen happen.
There are two types of Lasting Power of Attorney:
Lasting Power of Attorney for Property and Financial Affairs (‘Finance LPA’) enables you to appoint someone to make decisions about your finances as if they were you. That power continues even if at any given time you lack the capacity to make those decisions yourself.
The authority given by a Finance LPA is significant and wide ranging and enables your attorney to step into your shoes and make decisions on your behalf about the entire range of your finances, from paying your electricity bill to selling your house.
In most circumstances, if you do not have the capacity to make a decision about your finances, an attorney appointed pursuant to a Finance LPA will be the only person who is legally authorised to make that decision for you. If you lose your mental capacity for these purposes and have no Finance LPA attorney appointed, usually the only way for your finances to be operated is for someone to apply on your behalf to be appointed as a financial deputy by the Court of Protection.
Giving your spouse or partner Finance LPA means that, should you lose your capacity, for example, in a motorbike accident, someone is in place with authority to pay your mortgage and your bills and deal with any applications for benefits you may be entitled to. Many people are not aware that in most circumstances banks have a duty to freeze a joint account once one of the joint account holders has lost their mental capacity. Relying on your joint account holder to operate your finances should you lose your mental capacity is therefore not a prudent Plan B.
Lasting Power of Attorney for Health and Welfare (‘Health and Care LPA’) enables you to appoint someone to make decisions about your health and care if at any given time you lack the mental capacity to make these decisions.
An Health and Care LPA, unlike a Finance LPA can only be used by your attorney to make a decision if you have lack the mental capacity to make that decision yourself. It gives your attorney the legal authority to make your wishes about your health and care known to those providing care for you.
An Health and Care attorney can make sure that you are looked after in the way you would wish were you able to communicate your wishes yourself. For example, if you were to lose capacity, what kind of care would you want? Would you want life sustaining treatment? If so, in what circumstances? Do you have any dietary requirements that you would want your carers to be aware of – are you vegetarian for example and would you like always to be so even if you are no longer capable of deciding or communicating your decisions yourself? These are just some of the issues that many of us don’t think about while we are well but would attach a great deal of importance to if we were able to predict whether and when we were to lose our mental capacity.
If there is a need for someone to make decisions for you about your health and care and you have not appointed an attorney for this purpose, usually an application will need to be made to the Court of Protection for the appointment of a personal welfare deputy.
Increasingly, we are approached on behalf of people when it is too late for them to grant power of attorney because they have already lost their mental capacity. Whether or not you decide to appoint attorneys pursuant to a Lasting Power of Attorney, ‘now’ is always the best time to consider this. None of us know what is around the corner.
We all have the power to make sure that, should the worst happen, the person we would rely on to deal with the unexpected will not have the additional burden of applying for the legal authority to do that for us.
If for any reason – maybe there is no one in your life whom you would trust at all times to act in your best interests, or you prefer for any other reason not to make a Plan B in advance, or your are consulting us on behalf of someone who has already lost capacity, please see our Deputyship Application page.
- Louise Kerr - Head of Private Client
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