We are all familiar with the need to write a will, ensuring that our executors have clear instructions on how to deal with our assets and giving them the tools to apply for probate and manage the legal requirements.

For many of us, the need for a Power of Attorney is less clear – after all, you’re in good health and perfectly able to manage your own affairs on a day-to-day basis or to engage someone else to deal with those aspects of life that are outside of your expertise.  Surely, it’s only the elderly or chronically ill that need to sign over the management of their personal admin?

The truth is that things – accidents, illness – can happen at any time and they are very rarely preceded by a 2-week warning.  Setting up LPAs makes it possible to keep the household running and allows your attorney to advocate for you with medical professionals, social care providers etc.  This is even more relevant where a couple is neither married nor in a civil partnership since cohabitation does not automatically confer next of kin privileges.

Assuming that you are now convinced of the wisdom of having an LPA, what powers are conferred by granting one?  Well, that depends on you. 

There are 2 types of LPA –

Property & Financial Affairs

Financial decisions might be about:

• opening, closing and using your bank and building society accounts
• claiming, receiving and using your benefits, pensions and allowances
• paying your household, care and other bills
• making or selling investments
• buying or selling your home

A Property & Financial Affairs LPA can be brought into effect immediately, if that’s your wish.  It can be restricted to certain areas only and you can give specific instructions on individual issues.  Alternatively, it can be registered but not activated until you are deemed to lack mental capacity.

Health & Care

Health and care decisions might be about:

• giving or refusing consent to health care
• staying in your own home and getting help and support from social services
• moving into residential care and finding a good care home
• day-to-day matters such as your diet, dress or daily routine

With a Health and Care LPA, your attorneys can only make decisions when you don’t have mental capacity.  One very important decision has its own section in a health and care LPA. You can choose whether your attorneys or your doctors should make decisions about accepting or refusing medical treatment to keep you alive if you can’t make or understand that decision yourself.

You don’t have to have complex health or care problems to make an LPA. It’s a way of planning for your care in case you can’t make decisions for yourself in future

What is ‘mental capacity’?

 ‘Mental capacity’ means the ability to make a specific decision at the time it needs to be made. A person with mental capacity has at least a general understanding of:

• the decision they need to make
• why they need to make it
• any information relevant to the decision
• what is likely to happen when they make it

They should be able to communicate their decision through speech, signs, gestures or in other ways.  People can sometimes make certain decisions but don’t have the mental capacity to make others. For example, someone may be able to decide what to buy for dinner but be unable to understand and arrange their home insurance.

Who decides that a person lacks mental capacity?

An assessment will be carried out by medical professionals and the results presented to the Court of Protection – they will then decide whether it is appropriate to activate a previously registered LPA.

What happens if a person recovers and wants to resume managing their own affairs?

If medical professionals agree that mental capacity has been restored then an application can be made to the Court of Protection for the power to be discharged.

In short, there is nothing to be feared from granting a Power of Attorney – they are not just for the elderly and incapacitated.  If you would like to know more, please get in touch, we’ll be happy to supply further information.

 

 

Professional advice is necessary for every case; we would love to hear from you…

September 2021