Last Updated on 14.7.22 by Kelly Hurst
None of us want to face the idea that our faculties may potentially fail us one day, and so many people put off thinking about such topics as making a Will or Lasting Power of Attorney until perhaps it is too late.
Now is a good time to think about what we should do to prepare for a deterioration of our capacity, so that we can provide some certainty and peace of mind.
Why make a Lasting Power of Attorney (“LPA”)?
For many of us, it is important that our loved ones know what to do in the event that we do lose capacity, and that they have the power to make decisions on our behalf when we are no longer able to make them ourselves. This can include decisions about our finances, our property, our medical treatment and our care needs.
Can my spouse make decisions on my behalf without an LPA?
It is important to note that unfortunately, there are no automatic rights for our spouses or next of kin to make decisions on our behalf. These rights should therefore be documented in a Lasting Power of Attorney for them to have legal effect.
Banks and medical institutions will often require sight of an LPA when attempts are made to manage the affairs of someone other than ourselves, regardless of our relationship to that person.
Types of LPA
There are two types of Lasting Powers of Attorney, which cover different things. They are:
- LPA for Property & Financial Affairs; and
- LPA for Health & Welfare
LPA for Property & Financial Affairs
This LPA deals with decisions about our home and our bank accounts.
It allows our attorneys pay our bills, manage and invest our funds (if appropriate), and sell or purchase property on our behalf.
This LPA can be used whilst you still have capacity to make decisions, but also when you have lost capacity. It is therefore helpful in situations where you perhaps cannot leave the house to get to the bank due to mobility issues or unexpected illness, or perhaps you are resident in a care home.
LPA for Health & Welfare
This LPA deals with decisions primarily about our medical treatment and care needs.
It allows our attorneys to decide on whether we are to receive life-sustaining treatment, whether we would want CPR and also to be able to make decisions about whether or not we would want to enter a care home environment or perhaps be cared for at home in later life.
This LPA however can only be used if you no longer have the capacity to make these decisions yourself and would allow your appointed attorney(s) to step in and make them on your behalf. Whilst you still have the capacity to make decisions about your health and welfare, you are able to do this yourself.
What is capacity?
We talk a lot about having capacity, and this is indeed very important. Capacity is the ability to understand the nature of your acts, the extent of your property affected and the implications of the same. It requires you being able to retain information which you can later act upon.
You can only make LPAs if you still have capacity, and so it is important to get your affairs in order as soon as possible.
It does not matter how old you are; people can lose capacity through illness or even accident, and we would recommend that everyone puts an LPA in place to cover these situations.
A memory related diagnosis is not in itself a bar to making LPAs. It would be dependent on how early you are in your diagnosis, and the extent of which your diagnosis affects your memory. It might be the case that your GP can provide a medical opinion as to whether you have the requisite capacity to make legal documents.
What about Enduring Powers of Attorney (“EPAs”)?
Enduring Powers of Attorney were the predecessors to LPAs; however, they were quite limited in their scope and application. For this reason, LPAs were introduced to replace them, and it is now no longer possible to create an EPA.
However, this change did not automatically invalidate or revoke any existing EPAs, and so those who already have them in place can still use them. They are therefore still relevant, despite their redundancy.
EPAs only covered decisions regarding property and finances, and not decisions regarding health and care. EPAs can be used by attorneys if you have capacity but have to be registered when your start to lose mental capacity. This process then takes several weeks for the Office of the Public Guardian to complete the registration (at present around 5-6 months). This meant that no decisions could be made on the person’s behalf in the meantime, which left many family members stuck.
The functionality of EPAs was therefore impractical and unduly restrictive.
Court of Protection & Deputyship Orders
If you are deemed to have lost capacity (through age, illness of accident) and you have not already managed to put an LPA (or EPA) in place, then in order for your loved ones to make decisions on your behalf they must make an application to the Court of Protection.
This process is unfortunately more time-consuming, hugely frustrating and much more costly. Applications can take up to a year to put in place and legal fees can be in their thousands, and so this route is naturally less attractive.
Applications can only be made when the person has lost capacity, and this therefore leaves our loved ones in a very difficult position where they are unable to deal with our affairs for a protracted length of time whilst the court process is being followed. This can lead to unnecessary stress at an already difficult time, and so we would always recommend putting LPAs in place whilst you still can.
If you would like to speak to one of our team for further advice and information on Lasting Powers of Attorney, Enduring Powers of Attorney or Deputyship Orders, then please contact 0161 930 5117 or email email@example.com
Associate Solicitor, Wills, Trusts & Probate