Many people when they hear the word “Lasting Powers of Attorney” tend to think they will only need one in later life, but no one knows what the world is going to throw at them. With life full of twists and turns, having a Lasting Power of Attorney in place can give you and your family peace of mind.
If someone loses the mental capacity to make certain decisions, this could be due to a neurological disease such as dementia, a stroke or a brain injury from a car accident for example, unless a Lasting Power of Attorney is in place, no one has the legal authority to access a person’s bank account etc. to deal with all of their financial affairs, including selling property if needed.
Created under the Mental Capacity Act 2005, a Lasting Power of Attorney enables you to choose who you would like to make decisions on your behalf when you are no longer able to.
First of all, jargon busting!
If you are making a Lasting Power of Attorney, you will be known as “the donor”.
The person/people you choose to make decisions for you when you no longer have capacity are known as “attorneys”. Often these are close family members or trusted friends. Where there is no one suitable, we provide a professional attorney service and act as attorneys for many clients.
The ‘certificate provider’ is an independent person who makes sure you/the donor understands the Lasting Power of Attorney and who certifies that you have the capacity to make a Lasting Power of Attorney and have not been forced to do it. The certificate provider is either doing this in a professional capacity (eg. a medical professional or legal professional) or in a personal capacity (if they have known you for two years as a friend). They cannot be an attorney.
There are two types of Lasting Power of Attorney:
- Property and Affairs : This enables your appointed attorney to make decisions about your property and finances, eg. from paying bills to speaking to energy suppliers on your behalf as well as handling investments and property. You decide whether you want your attorneys to be able to act whilst you still have the mental capacity to manage your own affairs (but perhaps don’t want to) or if they only step in when you lose mental capacity in this regard.
- Health and Welfare: A Health and Care Lasting Power of Attorney ONLY comes into effect if you no longer have the mental capacity to make decisions about your health, care and/or medical treatment. Your attorney will be able to make decisions about the care you receive, where you live, your day-to-day welfare and, should you choose, whether you should receive life sustaining treatment.
Get planning…
To reduce any worry and stress for loved ones, preparing a Lasting Power of Attorney well in advance of any diagnosis will ensure you have peace of mind that your attorneys are able to manage your finances and are aware of any instructions or preferences you may have in relation to both your financial future and any health and welfare matters.
Any situation where someone loses mental capacity is never an easy situation and can be heart-breaking for those involved. Planning early can lessen the strain on loved ones who can also have peace of mind that the decisions they are making are in the donor’s best interests and what they would have wanted.
Getting it right…
Like the creation of a Will, a Lasting Power of Attorney is an important legal document. The process can be completed online but it is important to remember It is a powerful document and it is very easy to make mistakes or misunderstand what they are and how they can be used. Many online DIY websites help you complete the form but without the proper knowledge and advice, the Lasting Power of Attorney could be unenforceable or not reflective of your wishes. Common reasons why Lasting Powers of Attorney are rejected by the Office of the Public Guardian include:
- Instructions and preferences: people who have drafted their own can often run into problems when they try to restrict the power they are giving to their attorney.
- Signing in the wrong order
- Illegible information
- Missing information
Here to help…
If you would like information on making a Lasting Power of Attorney, please call Sharon Edwards on 07415 197122 for guidance and advice on the next steps
If a Lasting Power of Attorney isn’t in place and you lose the mental capacity to make decisions, an application will need to be made to the Court of Protection to appoint a Deputy who is appointed by the court to make decisions on your behalf. Moore & Tibbits has a specialist Court of Protection team to help if a loved one loses capacity to make decisions and a Lasting Power of Attorney wasn’t created. To find out more about the Court of Protection, please click here or contact Marie O’Malley on01926 354704.
