Losing Capacity – Don’t leave it too late to get an LPA
Most of us will need to consider who will manage our affairs and look after us in our later life or, if and when we lose the ability to do this for ourselves. It may be that we first have to consider this for our ageing parents or a family member.
Most people first experience the need for a Lasting Power of Attorney (LPA) because a friend or relative has lost capacity without making one. If you lose mental capacity and have not made an appropriate Lasting Power of Attorney, your relatives, friends or even the local authority, can apply to the Court of Protection to be able to make any decisions on your behalf as a “Deputy”. You should bear in mind that once mental capacity for decision making has been lost there is no option but to apply to the Court of Protection, which will normally be a time-consuming and expensive process, often lasting in excess of six months and during which time assets may be effectively frozen. We would therefore recommend all our client to seriously consider obtaining both types of Lasting Power of Attorney in advance.
What is an LPA?
An LPA is a legal document that enables you (The Donor) to choose someone (The Attorney) to make decisions on your behalf, about such things as your finances, property and your personal welfare, at a time in the future if you become physically or mentally incapable of dealing with those affairs yourself.
Anyone over the age of 18 can set up an LPA providing they have the mental capacity to understand the meaning and the effects of it.
- Property and Financial Affairs (e.g dealing with the sale of your house and paying bills and making investments on your behalf); and
- Health and Welfare Decisions (e.g deciding which care home you go to or where you live and medical treatment)
You would normally appoint more than one attorney, but can appoint as many as you wish.
However you need to consider how you appoint them as there are several options: Jointly; Jointly and severally; or Jointly for some decisions and severally for other decisions.
You can appoint different people for property and/or health depending on the type of LPA it is and their ability to carry out their duties. You can give attorneys as much power as you like (they do by default have the same powers as the donor). You can however place conditions and restrictions on their power.
You can also appoint a Replacement Attorney, who would step in if your first appointed Attorneys could permanently no longer act.
Property and Financial Affairs LPA – can be used as soon as it is registered at a registration cost of £82 per document. This can be useful from a practical point of view, if for example, you still have mental capacity but have had an accident.
Whilst you have mental capacity, your Attorney must follow your instructions when making any decisions with you/on your behalf.
In relation to the Health and Welfare LPA – with this document your attorneys will only be able to make decisions for you once you are unable to make those decisions for yourself. (case specific)
When it comes to preparing a Lasting Powers of Attorney for yourself or on behalf of someone else we would always recommend that you seek professional legal advice to ensure that you complete the form so that the document reflects the best and most useful result for everyone involved.
An example of a choice which could cause difficulties later on would be if a Donor chooses the ‘Only when I don’t have mental capacity’ option on the form for property and financial affairs. This may provide some comfort for all parties at the time the forms are completed but as the warning on that box states ‘Be careful, this can make your LPA a lot less useful’.
This is just one example of a warning which should be heeded for a number of reasons:
- First, when the time comes, you will now need an assessment that capacity has been lost. That is a service that can be carried out by a doctor or certain other healthcare professionals, alternatively there are specialists who can do the assessment, but there will always be a cost.
- Second, should that person go into a care home, booking and coordinating an appointment is not without issues. Bear in mind that the medical profession is under increasing pressure and finding a suitable practitioner may take time. Determining that someone has lost capacity also carries risks for whoever does it should there subsequently be a dispute, so probably not top of that practitioner’s ‘to do’ list, unless they are specialists.
- Covid is not yet history; what happens if restrictions are placed on care homes again. How will industrial action by the medical profession impact weekly or monthly rounds by healthcare professionals. Arranging the assessment of capacity may take far longer than anticipated.
- At upwards of £5,000 a month for care home costs the money likely to be in the donor’s current account isn’t going to last long and yet without an assessment of capacity it is not possible to access their savings to cover the bills. You may even feel you need to pay the bills yourself until things can be sorted out and use the Donor’s funds to repay yourself later. That may be an answer if you can afford it, but bear in mind that the Local Authority will be very interested in large financial transactions from the current account if you subsequently seek their assistance with care fees for the Donor and you may need to show the paper trail to persuade them repayments were justified.
What if I have an Enduring Power of Attorney?
If your Enduring Power of Attorney was made correctly, signed and witnessed before October 2007 then it may be valid. These types of documents are no longer made but any correctly executed document can still be valid. They are not registered with the Office of the Public Guardian until the Donor loses capacity.
- When the donor loses capacity there can be a delay whilst notifications are given and the registration is completed with the OPG – during which time the document cannot be used.
- When this occurs often mistakes are found and if you are at the point of registration then this can often be too late to make a new document.
- It is always worth checking these documents BEFORE they are needed.
We should note however that the enduring power of attorney will not cover health and welfare and prior to October 2007 there was no provision for this.
The Team here, at Wellers will ensure that you have the appropriate documents drafted and applications made to suit your personal circumstances. Please do contact us to discuss this further with a member of our private client team.
Contact us by email: firstname.lastname@example.org