Capacity to manage your affairs can be lost for many reasons, such as a sudden accident or medical condition. With over 850,000 people in the UK currently living with dementia (and rising) ensuring your loved ones have the ability to make decisions for you is essential.
Many people understand the advantages of making a Lasting Power of Attorney (LPA) for Property and Financial Affairs, often viewing this type of LPA as being the most important to have in place and putting off an LPA for Health and Welfare until a later date.
It’s also worth noting these are two separate legal procedures that are independent of one another and you can only set up a Lasting Power of Attorney when you have mental capacity. Once you’ve lost capacity, it’s too late.
The following is a true account of an individual with no Health and Welfare LPA in place:
“Mum was admitted to hospital and following a lengthy stay, Social Services along with the Local Authorities compiled a health report along with an assessment for care. Naturally, her children wanted to be involved in this process and requested that they be consulted with the view to wanting to ensure that the care package would be what Mum would have wanted. Not only were we not invited to any of those meetings to decide Mum’s fate, the authorities also refused to reveal the contents of the health report to her own children. All decisions were made without any of her immediate family present.”
Can any decision made be challenged?
If there was a serious dispute about any decisions made by the professionals/authorities, then your family would have to apply to the Court of Protection for a Deputyship order, which is an expensive and lengthy process. The court is also unlikely to appoint a Deputy to take charge of decisions about your health and welfare generally and so it is possible that more than one application must be made to the court as circumstances arise.
What many people do not know is that Health and Welfare Deputyship Orders are granted much more sparingly and many are rejected by the court. The court will only appoint a Health and Welfare Deputy as a last resort and it is much more expensive and time-consuming compared with having a Health and Welfare LPA established.
So, in the absence of a Health and Welfare LPA or a Deputyship order, the Mental Capacity Act gives a general authority to allow decision makers to take action in providing care for individuals who lack capacity, as long as those interests are in the interests of the incapacitated individual and all reasonable steps have been made to ensure the person in questions cannot make the decision themselves. The difficulty with that is ‘decision makers’ often have competing objectives, for example, to balance out what is in the best interests of the patient versus the costs considerations of providing that care.
The following is an account of not having a Health and Welfare LPA and the issues involved:
“My Mum is deputy (via the Court of Protection) to my Dad, who has advanced dementia. It’s a very long, drawn out and quite intrusive process.
It’s also expensive. Mum will have to pay hefty yearly fees too. I just wish we had managed to get a Lasting Power of Attorney instead, when Dad was more capable. He became ill very quickly and we couldn’t implement it in time.”
If you have a Health and Welfare LPA and have communicated your wishes to your attorneys, it can maximise your chances of having your wishes followed in the future. Having it in place provides reassurance of knowing that, if the worst should happen, you have chosen someone you trust and knows your wishes, to make those decisions for you.
A Property and Financial Affairs Lasting Power of Attorney
This LPA will allow an attorney the power to make decisions about money and property for you, for example:
- Managing a bank or building society account
- Paying bills
- Collecting benefits or a pension
- Selling your home
The following is an account of an individual without a Property and Financial LPA: –
“The problems arose when William’s mother was taken into care after being diagnosed with Alzheimer’s. She was deemed unable to act and make decisions, but hadn’t arranged an LPA; this meant the Court of Protection took control of her finances and other affairs.
“While William applied to become deputy so he could buy necessities, such as clothing and toiletries, he had to keep receipts and submit annual statements to the courts. The whole situation was very stressful, as the Court of Protection still had the final say. It left William feeling totally helpless”
Once you have completed the LPA form, you will need to get someone to sign it to state that you have the mental capacity to make an LPA. This means:
- You have the ability to make this decision
- You understand what an LPA is, what your options are, and the consequences of making it, and
- You made the decision yourself.
There is a section within the application form for them to sign, and the person who signs this part is called the certificate provider. They can be:
- A professional, such as your doctor, social worker or a solicitor
- Someone who has known you for two years, but is independent – that is, they aren’t a family member or an attorney and they will not benefit from the LPA (You also need to get someone to witness you signing the form. Each attorney must also sign the form to say that they agree to act as your attorney if needed in the future, and that they understand the duties this involves
You will also have the option to list one or more ‘people to notify’ on your form. These are people who you want to be alerted when the LPA is registered, if you don’t plan on registering it right away. This could be anyone you choose, for example a friend or relative. The purpose of this is to give you an additional safeguard. It is only an option, so you don’t have to name someone. However, many people like the protection it can offer, and the reassurance of knowing that people will be kept informed of what is happening.
From 1st April 2017, the fee to register the Lasting Power of Attorney was reduced from £110 to £82 per application. So now is an ideal opportunity to put this in place. For more information go to:
https://www.gov.uk/power-of-attorney/overview
You can apply on line but will still need to print off the documents to be signed by the necessary individuals. It can take up to 10 weeks to be registered.
30th June 2017
