Lasting Power of Attorney
Thinking about what might happen in the future if you or someone close to you becomes unable to make their own decisions is uncomfortable – yet the situation can be much worse if you have not thought about it beforehand.
“People put a lot of time and energy into deciding what will happen to their things after they die. Yet what will happen to them while they are still living is even more important” says Kim Simper, expert in Wills & Powers of Attorney at Gordon Dean Solicitors.
A lasting power of attorney (LPA) is a legal document that lets you appoint one or more people (your ‘attorney’) to help you make decisions or to act on your behalf. This gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions (i.e., lack ‘mental capacity’) at the time they need to be made. These could be decisions about your property and financial affairs (paying your mortgage and other bills, investing your savings or buying items you need) or your personal welfare (where you should live, what you should eat, your medical care and other arrangements for your care). Without an LPA a relative or friend may not be able to do any of these things for you, and decisions about your care may be made by Social Services – decisions which might be contrary to what you would have wished.
The kinds of illness which might prevent you from making decisions for yourself in the future include dementia, a brain injury or stroke, mental health problems, and other illness or disability. There are 850,000 people (including 40,000 under the age of 65) in the UK suffering from dementia, according to the Alzheimer’s Society, and it affects one in six people over the age of 80.
Setting up an LPA doesn’t mean you are suddenly giving up control of your affairs. There are two types of LPA, one for Health & Welfare and one for Property & Financial Affairs. You can choose whether the Property & Financial Affairs LPA can be used either before, or only when or if, you lose mental capacity, while the Health & Welfare LPA can only be used once you have lost the power to make your own decisions.
Anyone can set up a Lasting Power of Attorney if they have the mental capacity to understand it and have not been put under any pressure to create it. There are checks in place to ensure this is the case – a certificate provider must sign the LPA to confirm that you understand it and haven’t been put under any pressure to sign it. They must be someone you know well or a professional person, such as a doctor, social worker or solicitor. And your attorney cannot start making decisions on your behalf until the LPA has been registered by the Office of the Public Guardian, who will make sure your attorney is aware of his or her duty to act in your best interests.
As it’s not possible to set up an LPA once you have lost mental capacity, it’s very important to plan for the future and think about it now. If you lose mental capacity and have not set up a LPA, then your relatives or friends may face long delays, expense, and a great deal of stress in applying to the court of protection to get access and take control of your assets and finances for you.
The role of an attorney involves a great deal of power and responsibility so it’s important that you trust the person you choose. Your attorney could be a family member or a friend – someone you believe would be able to carry out the role and make decisions in your best interests.
Kim Simper can advise on all the issues raised here. Contact her at Gordon Dean Solicitors on 01603 767671 or via our contact form for advice.