Have you considered Power of Attorney so that you can care for your partner, spouse or an elderly relative not necessarily just in their advancing years, but at any time when they can’t do so for themselves?
Who will make day-to-day decisions for them, acting in their best interests in relation to their property and finances if they lose either the mental or physical energy and patience to be bothered to deal with these things? Or worse, sadly lose the mental capacity to make decisions about their own health and welfare?
Without any formal prior legal authority in place, vital decisions – whether about money or health – may take longer to be approved, if at all – or even be placed in the hands of absolute strangers. Some important decisions may be delayed or become so protracted, that they become redundant, irrelevant, or even superseded by intervening events, if the moment has passed.
As an example, let’s take an emergency situation such as a stroke, where life-saving treatment or surgery is required immediately, but there is no one specifically appointed in advance by the patient to make such vital decisions on their behalf – to operate or not; to resuscitate or not. These types of emotional and difficult decisions often need swift and immediate action to be effective and can be literally a matter of life and death.
It’s easy with hindsight to appreciate how all critical decisions, not just about medical matters, can be made more effectively if the patient’s wishes are expressly known and recorded in advance to cater for such unforeseen circumstances.
Whilst decisions can be made in the ‘best interests’ of a patient – this is usually as a default position in the absence of prior stipulated wishes. Are snap ‘best interest decisions’ necessarily the right choice or even the decision the patient would have chosen themselves if they had the mental capacity to do so? Does the proposed decision made on their behalf conflict with their known moral ethics or religious beliefs?
Many of these daily decisions which families and their relatives face, whether big or small, often cannot be processed quickly and smoothly (or even at all!) without a valid Lasting Power of Attorney (LPA).
What is an LPA?
An LPA is a legal document which allows a person (called the ‘donor’) to appoint another trusted person (their ‘attorney’) to act on their behalf and to make decisions about their welfare, money, or property should they lose mental capacity in future.
Unfortunately, without a crystal ball, no one knows what tomorrow will bring, and even those in peak of health, can suffer a sudden and unexpected life-changing event (e.g. an accident, sporting injury, illness, heart attack or botched medical procedure) which can have long-term financial and medical implications.
For peace of mind and to retain control of your health and wealth, we strongly recommend that every adult should have an LPA in place to meet such unforeseen vicissitudes of life.
LPAs are not just for the elderly and infirm, so don’t put off getting yours registered.
Lasting Powers of Attorney (LPA)
There are 2 types of LPA a donor can make. One is for Property and Finance and the other is for Health and Welfare. Most people making an LPA do both.
1.Property and Finance: May be needed to manage and make decisions about the donor’s money, finances and property and give authority to banks, accountants, stockbrokers, lawyers etc
The LPA for Property and Finance can operate even if the donor still has full mental capacity – e.g. they want their offspring or professional advisor to manage their financial administration tasks on their behalf.
Whether it is becoming a signatory on their bank account to ensure all household and utility bills are paid, claiming pension, or generally looking after the donor’s financial affairs e.g. selling shares and investments for profit, to stop losses, or realise cash – all these financial matters and much more can be organised in advance whilst the donor still has mental capacity to get their affairs in order.
2.Health and Welfare: May be needed to give authority to medical practitioners, GPs, consultants, therapists, carers and hospitals, for a whole array of medical or even day-to-day decisions – for example, decisions about diet; care or treatment; changing medication regimes; potential lifesaving or treatment or surgery; cancer treatment – weighing up risks and suffering versus longevity and quality of life; care at home versus a care home; or even simply to access medical records.
NB: This type of LPA only comes into effect once the donor has lost mental capacity. So, until then, they still retain power to make their own decisions about their health and welfare.
Requirements for making an LPA
The donor has to be over 18 years old and have mental capacity to understand what they are signing.
The attorney(s) also have to be over 18 and have mental capacity to make decisions.
Cognition and mental capacity – what’s the difference?
Some advantages of making an LPA:
- LPAs give the donor peace of mind knowing that someone they trust will be able to look after them and their affairs, at a time when they can’t.
- The donor can choose their attorneys – usually family members, friends or professional advisors (could be an accountant, lawyer, doctor) – whom they trust to act on their behalf and make decisions for them at a time when they can’t make their own.
- The donor can give specific instructions to help direct their attorneys as to things they do or do not wish them to do on their behalf, or should or should not consider, in the event that they lose mental capacity.
- The donor can also use the LPA to state any preferences to guide their attorney(s) e.g “I would prefer to be cared for and live at home if possible, and not go into a care home.”
Instructions imposing an obligation, are mandatory, and therefore must be followed to the letter by the attorney, whereas preferences are for guidance or an expression of desired ‘wants’ or ‘likes’, but are optional.
Other examples, where instructions or preferences may be relevant, typically include topics like:
- Where they would like to live if they can’t live independently
- Who will provide for their future care
- Where they would like that care to take place (e.g at home, in a care home or other care facility
- Whether or not to have life-prolonging treatment for a terminal illness, and to what extent, and in what circumstances
- To weigh up the risks vs benefits of any necessary surgery
- Whether or not to resuscitate, based on the expected outcome or prognosis
- Whether the attorney(s) should consult with other family members about certain key decisions
- How they would like their funds and investments to be managed (eg avoiding unethical funds)
All these difficult, highly emotional and challenging decisions – often needed at short notice and at critically pivotal times – can be made in advance – if there is the correct LPA in place – enabling the appointed attorney(s) to know how to react and what is expected of them to meet the donor’s express wishes.
Disadvantages of making an LPA
We can’t think of any!
How do the attorneys act?
The donor can choose up to 4 attorneys and can instruct them to act either:
Individually: the attorney(s) can make decisions on their own
Jointly and severally: the attorneys can make decisions on their own or together
Jointly: the attorneys must agree on every decision together, big or small. Technically, it can be interpreted that all attorneys must be physically present and together for every decision made. Though, practically speaking, this isn’t always feasible if they live at some distance from each other. So this is worth discussing in some detail before specifying how to instruct your attorneys.*
Jointly for some decisions and jointly and severally for others: the attorneys must all agree on certain decisions (i.e. act jointly) but can make other decisions individually.
Substitute attorneys
The donor can also appoint substitute attorneys to act on their behalf in default, as a back-up, in case an original attorney can’t act (or declines to act) for any reason. Similarly, the donor can leave specific instructions (or preferences) on how the substitutes should act, too. Otherwise, they will automatically be deemed to act jointly – which could be restrictive and hamper decision-making in certain situations. See above. *
Note: If the donor only appoints one attorney without any substitutes, and the attorney can’t or won’t act, or dies in the meantime, then the LPA stops working altogether. So, it is often considered more expedient to appoint substitutes, if appropriate, to extend the life of the LPA.
However, if there is no LPA in place, once the individual loses mental capacity, a representative (usually a family member) will need to make application to the Court of Protection to appoint a Deputy, to make those decisions on their behalf. This can be an expensive and protracted process and can delay key decisions which will inevitably be for the well-being of the individual. If the Court appoints a professional Deputy, such as a lawyer, they are likely to charge high fees for their service. So, we highly recommend that you get your house in order before it’s too late.
Mental Capacity
Many people don’t realist that the LPA ends automatically on death and is no longer valid. But if the donor has made a Will, the Executors appointed under the Will then take over the running of the donor’s estate.
Mental Capacity Assessments – when should you have one?
Revoking the LPA
If you find you have made an error in your LPA, or want to change your mind as to who your appointed attorneys (or substitutes) are, or how they act (eg jointly instead of jointly and severally), then you will need to register a new LPA. Please note that all previously registered LPAs will still stand unless revoked.
LPAs are important for NHS Continuing Healthcare applications!
GP, hospital and care home records are usually required by NHS assessors and families of a living applicant when considering any application or appeal for NHS Continuing Healthcare Care Funding. However, without appropriate legal authority i.e an LPA, you may struggle get access to vital records to support your relative’s application for funding.
Problems with care home records? Mind your language…
Need help getting copies of your relative’s care home records?
How do I go about making my LPA?
Making an LPA is relatively straightforward, and you can complete the form online with the link below. If you need further advice, you may feel more comfortable seeking professional advice when completing your LPA. Regardless, we recommend setting up your LPAs as soon as you can.
https://www.gov.uk/government/organisations/office-of-the-public-guardian
Simply follow the guidance and complete the various forms of Power of Attorney, print them off, and then lodge them with The Office of the Public Guardian. Although completing the LPA can be done free online, there is still an application fee to register each LPA (currently £82.00).
For further reading around the subject look at these blogs and many more you can find on our website.
I have a will, so why do I need a Lasting Power of Attorney?
Essential: Have You Got A Power Of Attorney
Self-defence – Protect yourself and make a Lasting Power of Attorney
Summary
An LPA provides comfort and reassurance that decisions will be made by a trusted person in the donor’s best interests should they lose capacity.
Our simple advice is not to put off making your making your LPA and leaving it too late!
If you want help with your LPA, simply visit our Contact us page and we will put you in touch with professionals who can help.
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Hi I am trying to help a friend, Tom, who has a LPA for Property and finance for his sister. She has MS totally bedbound, has a PEG etc. She has capacity but cannot communicate except by grunting. A CHC assessmnet was done in Feb 2023 which determined she needed only funded nursing care! I am trying to help Tom get fully funded care CHC but of course the CCG/ICB are throwing the LPA obstacle in the way in that we cannot see what the original assessment said so the appeal is rather oneside. I have tried the OPG Best Interest stance but am stuck. The LPA is for finance and that is what Tom is fighting for.
My husband suffered sudden catastrophic brain injury at the age of 55. We did not have an LPA. A will, yes, but that didn’t help. I used to describe myself as a wife without a husband, a widow without a dead body, and a single person battling the odds.
I applied for a deputyship, and then spent seven years of hell dealing with an entirely unsympathetic OPG. This was worse than dealing with all my husband’s medical issues as he lay in a nursing home, staring up at the ceiling, unable to do a thing or communicate in any meaningful form and being fed through a stomach tube until the day he died. I visited almost daily, sometimes several times a day.
A very very stressful situation which was made very much worse by my dealings with the OPG. My solicitor was horrified, extremely supportive, but the OPG were intransigent. He was their ‘client’. He was, however, still my husband.
An LPA would have avoided a lot of this stress. I have recommended setting one up to all my friends. Do it, file it, and hopefully you won’t need it. But if you do, be thankful it is there.