Lasting Power of Attorney - have you considered the future?

When you (the ‘donor’) give Lasting Power of Attorney (LPA) to someone you trust, they will be able to manage your affairs for you, should you become unable to do so.

Don’t wait until it’s too late! Take action now to protect your interests.

It’s never too soon to set one up – because you never know when you might need someone to help you in this way in the future. When that time comes, things often happen very quickly.

Think about the practicalities of who would look after your health and everyday finances in the event of a sudden loss of cognitive functioning, mental capacity or ability to communicate. Worse still, consider the prospect of a complete stranger making decisions about your money, your house or your health and wellbeing – including where you live – while your family is powerless to do anything to protect you. Unexpected falls, car accidents, illness, admissions to hospital, strokes, stress or traumatic events can happen in the blink of an eye. Consider who would act on your behalf or make appropriate decisions in your best interests, at a time when you can’t do it for yourself. If you’re still asking yourself why you need an LPA, these events are just a few examples of the kind of scenarios a Lasting Power of Attorney helps to prevent.

Setting up an LPA will give you peace of mind and security in the long-term, knowing that you have chosen someone to take responsibility for you and your affairs; knowing in advance that your expressed wishes, desires and preference relating to your health, home and money will all be looked after at a time when you are no longer in control and able to manage them for yourself.

In short, make sure you don’t let a stranger take control over you and your affairs.

Choose someone you trust

For obvious reasons, the person you choose as your attorney is usually a spouse, partner, relative, friend or someone in a professional capacity. It’s vital that it’s someone you trust. They don’t need a legal background to act as an attorney. If you choose someone in a professional capacity, bear in mind that they will charge a fee each time they act on your behalf.

Do it now!

There are two types of Lasting Power of Attorney (LPA):

Property and financial affairs
Health and welfare

Many people say that they’ll wait until they need one before setting one up. This is a BIG mistake. By the time you need one, it’s often too late! And, even if an LPA can still be set up, your hands will be tied – and you”ll be unable to protect your own interests – until the power can be processed and registered (usually several weeks or months later). In the meantime, key decisions are likely to be made for you by people who don’t know you, and which might not actually be in your best interests, or conflict with your personal preferences or religious practices.

Why take the risk?

Having an LPA set up and ready to use makes no difference to your day-to-day life now. But once you have set one up, it can be used the moment you need it, with no delays. This is vital. Do it now!

Another advantage of having an LPA in place, is that you don’t have to wait until you lose mental capacity for your attorney to act. With your permission, your attorney can act on an ad hoc basis, as and when instructed by you, and take responsibility for making certain specific decisions whether on a particular matter or for a limited time. For example, while you’re on holiday and need someone to manage your bank account, make certain financial transactions, speak to your doctor for you, obtain or share information on your behalf in your absence etc;

Mental capacity to make your LPA

You must be at least 18 years old and have mental capacity to make a Lasting Power of Attorney.

The test for mental capacity to make decisions is satisfied if you:

understand the information you need – for example, what the consequences will be
remember the information for long enough to make the decision
can weigh up the options and make a choice
communicate your decision in any way – for example, by blinking or squeezing a hand

Mental capacity can be assessed by your doctor or another medical professional. See the attached link to the Mental Capacity Act code of practice

It’s important to bear in mind that once you lack the mental capacity to make safe decisions for yourself, you can no longer set up an LPA. That’s why it’s vital to do it now. It’s easy to put it off, but we can’t stress the need to protect yourself for unknown future life events.

If you lose mental capacity and you haven’t appointed someone to be your attorney, one of your relatives or friends will have to apply to the Office of the Public Guardian. The Court of Protection would then go through a process of appointing a Deputy to manage your affairs. However, this takes time and can be expensive, too. In the meantime, critical pending decisions over your health and/or finances may be delayed with disastrous consequences.

The Deputy could be a spouse, partner or member of your family or, if you don’t have any willing relatives, it could be a solicitor. In this case, your savings would be used to pay for their professional services, and this could be very expensive in the long-term.

It’s much better – and much kinder to your family – if you set up an LPA now, while you still can – rather than be beholden to the Court of Protection which could potentially appoint a Deputy who is not familiar with your lifestyle, wants or expressed desires. So, to avoid this outcome, it is far better to be pro-active and make your LPA whilst you have mental capacity. Don’t forget that you can state in your LPA any particular wishes or restrictions or limit the powers and scope of what your appointed attorney can and can’t do.

If you miss this opportunity, the matter is out of your hands and will be beyond your control if the time comes.

Read our previous blogs on mental capacity:

Cognition and mental capacity – what’s the difference?

Mental Capacity Assessments – when should you have one?

Enduring Powers of Attorney (EPAs)

Enduring Powers of Attorney are worthy of a brief mention, too. EPAs preceded Lasting Powers of Attorney and still exist in circulation, although they are far less commonly seen now.

If made and signed before 1^st October 2007, an EPA can still be used; but after this date, you have to make an LPA instead.

An EPA is still valid if it was made correctly ie if the person making the EPA (the ‘donor’) was at least 18 years old, wasn’t bankrupt (and still isn’t) and had the mental capacity at the time to make their own decisions when signing the EPA.

Like an LPA, the appointed attorney is responsible for helping the donor make decisions about managing their property and finances (eg: money and bills, bank and building society accounts, property and investments & pensions and benefits) whilst acting in their best interests at all times. Similarly, like an LPA, the donor could place restrictions on what their attorney can do and give guidance or instruction on how they want decisions to be made on their behalf.

The attorney can’t make a will on behalf of the donor but can apply to the Court of Protection for a ‘statutory will’ if the donor needs to make a will, but lacks capacity to do it themselves.

For more help on ‘best interests’ read our blog:

Do you need legal capacity to assist your relative’s claim for NHS funding? Arguing “BEST INTERESTS”.

Important to note:

LPAs (and EPAs) are only effective whilst the donor is alive and end automatically upon death – unless cancelled by the donor beforehand.

Responsibility for managing the donor’s affairs will pass over to their chosen Executors appointed under their Will. However, the lack of a (valid) Will can create a whole set of administrative problems and complex inheritance issues – perhaps benefitting relatives that you did not intend to inherit from you – plus, inevitable delays whilst the Executors apply to the Court for a Grant of Probate (giving the Executors legal authority to administer the deceased’s estate and deal with the assets including property, bank accounts, shares etc).

There are many advantages of a making a Will, such as: specifying who looks after your home, money, assets, investments and other financial affairs after your death; it enables you to make specific gifts to your beneficiaries (eg jewellery or other precious/sentimental items); make donations to charity; provide care for your pets; set out funeral arrangements and tax planning etc.

For additional reading:

I have a will, so why do I need a Lasting Power of Attorney?

Why you should consider making Lasting Power of Attorney or a Will

Practical: You’ll need an LPA to Pursue NHS Continuing Healthcare retrospective claims

If you are receiving full time care and you believe you’re being wrongly forced to pay for that care, you will almost certainly need someone to help you challenge that decision and pursue NHS Continuing Healthcare Funding to recover your care fees (see our one-to-one page). If the person helping you has a Lasting Power of Attorney, it makes it much easier, as they have official capacity to act and access your care home, GP and hospital records. Otherwise, a (family) representative will be acting in ‘best interests’ and may be overruled or ignored by the Clinical Commissioning Group and denied access to essential records. Therefore, it is far better to have an LPA in place as the overreaching authority, confirming your attorney’s legal status to act and make decisions on your behalf.

Note: It is particularly important to have an LPA if successful in making a retrospective claim to recover care fees, as the Clinical Commissioning Group can refuse to reimburse your relative without it. This can often cause much anxiety among families. Imagine having battled for years with the NHS and successfully recovered care fees – only to fall at the last hurdle – and for payment to be withheld (until a Deputyship Order is obtained).

Upon death, the Clinical Commissioning Group will require sight of the Grant of Probate instead (remember: the LPA lapses on death).

Summary:

Make your LPA now and put it away in the hope that you may never need it (just like taking out insurance). Job done. Don’t put it off any longer.

There is a fixed cost to creating your Property and financial affairs and Health and welfare LPAs (currently £82 each), but you can download the forms online and fill them in yourself, following the guidance: https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney

But, if you need assistance, visit our one-to-one page for professional help or send an email to: enquiries@caretobedifferent.co.uk

You can also find out more from: https://www.gov.uk/lasting-power-attorney-duties

Useful contact details:

https://www.gov.uk/government/organisations/office-of-the-public-guardian.

Office of the Public Guardian
PO Box 16185
Birmingham
B2 2WH

Telephone: 0300 456 0300

customerservices@publicguardian.gov.uk