What is a Lasting Power of Attorney?
A document which allows your appointed attorneys to act on your behalf when you cannot make decisions for yourself.
There are two types of Lasting Powers of Attorney ("LPA"). You may choose to set up both types or just one.
- 1. Property and Financial Affairs
Your attorneys will be allowed to make decisions about your property and financial affairs, such as selling your property, accessing your bank accounts, paying your bills and buying and selling investments.
While you have mental capacity, your Attorneys can deal with these matters for you with your consent but if you lose mental capacity, then your attorneys can deal with your property and financial affairs even if you do not have sufficient understanding to give them permission to do so.
- 2. Health and Welfare
Your attorneys will be able to make decisions on all aspects of your health and care, including where you live, who visits you and the type of care you receive. You can choose whether to give your attorneys the power to accept or refuse life sustaining treatment on your behalf
- This LPA can only be used when you lack the capacity to make such decisions for yourself.
Why do I need a Lasting Power of Attorney?
By preparing an LPA you will have the peace of mind of knowing exactly who will be responsible for looking after you when you are unable to make decisions for yourself.
What happens if you become incapable and you do not have a Power of Attorney?
Your financial affairs may be put under the control of the Court of Protection. This Court would then decide who would manage your affairs. The person who is appointed (called "the Deputy") may not necessarily be someone you know or the one you would want to deal with your affairs.
The Deputyship process can be expensive and time-consuming. Annual accounts must be sent to the Court of Protection for approval and the Deputy's powers to manage your affairs are usually limited.
Health and welfare decisions may be made for you by the Local Authority and Medical Practitioners based on what are deemed to be your best interests. These best interest decisions might, of course, not actually reflect your true wishes.
Can I cancel the Lasting Power of Attorney?
You can revoke your LPA at any time, either before or after it is registered, so long as you still have mental capacity. If you lose mental capacity, the document can only be revoked by Court Order.
CASE STUDY: What happens if it is too late to make an LPA?
Mrs S’s daughter (Mrs D) rang me to say that she knew I had made her mum’s Will. Had mum made any Power of Attorney as she couldn’t find anything? After checking my records, I could see that she had not. Mrs D asked me to go and see mum to see if anything could be sorted. When I arrived, Mrs S was clearly distressed and wouldn’t let me in the house. I tried again the following day, and this time I was allowed in. We started talking and having explained why I was there, Mrs S kept changing the topic of conversation, and within 5 minutes she asked why I was there, and so the cycle repeated itself.
With Mrs D’s help I went back a third time, and the same thing happened. I advised Mrs D that if we are to proceed with making an LPA we ought to get a capacity assessment completed by a doctor to see whether or not she was capable of understanding what she was doing. Unfortunately the GP was not able to help and therefore we had to wait for a Consultant geriatrician to become available. Three months later we had a report which showed that Mrs S’ capacity had deteriorated to the extent that she was not capable of making a Power of Attorney. So we then had to go through the Court process for Mrs D and her brother to be appointed as Deputies. A further 6 months down the line, they were finally granted an Order and they were then legally able to deal with mum’s finances. During this time, Mrs S had not paid her bills and there were a number of red bills which needed to be paid immediately. Mrs D and her brother were able to keep mum at home for another 6 months before it was clear that she was not able to stay at home without help, as she was no longer able to keep herself safe, and in conjunction with doctors and Social Services, it was agreed that the best option would be for mum to go into long term care, even though Mrs D knew that mum would not want this………….