People are becoming increasingly conscious about what may happen to them in later life if they are unable to make decisions for themselves. It has been well-documented that we can all look forward to living longer than ever, yet people are understandably concerned about how they will cope if they lose mental capacity as a result of conditions such as Alzheimer’s and dementia, or if they suffer a stroke.
Rodney King & Partners Solicitors can help you to plan ahead with confidence and find the best way to make arrangements for the management of your personal affairs or welfare.
A Lasting Power of Attorney (LPA) provides the opportunity for a person (‘the Donor’) to have a say in their future care, by appointing one or more trusted individiuals (‘the Attorney’) to look after property, finances, health and general care. You can set up an LPA so that it only activates once you are medically diagnosed as having lost mental capacity.
An LPA enables the Donor to give the Attorney the legal right to deal with his or her affairs. An Attorney must always act in the best interests of the Donor and must follow the Codes of Practice under the Mental Capacity Act.
By setting up an LPA in advance you can choose someone you trust to deal with your affairs. If you do not have an LPA, and later lose mental capacity, then someone will need to apply to the Court of Protection to become entitled to manage your affairs and this may not be the person you would have chosen yourself.
(i) Property and Financial Affairs, which gives the Attorney the authority, for example, to buy or sell property and make payments on behalf of the Donor
(ii) Health and Welfare which allows the Attorney to make decisions after the Donor has lost capacity relating to health care, medical treatment and in some cases end of life treatment.
A Donor will often appoint a family member or friend to be responsible for making decisions for them in the future. It is possible to appoint one person to act, or to name more than one person and specify different areas that each can make decisions about. It is also possible to specify those decisions that should be made jointly by two or more attorneys.
A Property and Financial Affairs LPA can be set up to come into force as soon as it is registered, or the Donor can put in place a provision so that the LPA can only be used if they lack mental capacity.
It gives the Attorney the authority to deal with the following areas, unless restrictions are put in place by the Donor at the time of taking out the LPA:
Restrictions exist by law in many of these areas to protect the Donor. For instance, gifts are limited to customary gifts the Donor may have been expected to make (eg. birthday gifts to relatives) and must not be unreasonable in size when taking account of the Donor's financial circumstances.
Importantly, an Attorney is under an obligation only to act in the Donor's best interests at all times, and various safeguards exist to ensure this.
A Health and Welfare LPA can only be used once it has been registered with the Office of the Public Guardian and also, importantly, after the Donor has lost mental capacity.
It offers broad scope for making decisions in a number of areas. These include:
LPAs are tailor-made to the individual. At the time of making the LPA the Donor can modify the scope of the power. These restrictions can be stated in the LPA at the outset so that it is clear which decisions the Attorney is allowed to make.
An Attorney can only consent to or refuse life-sustaining or life-prolonging treatment on behalf of the Donor if expressly authorised to do so by the LPA.
The Attorney is duty bound to act in the best interests of the Donor at all times, and in cases of end-of-life treatment should consult with carers and family members who have an interest in the Donor's welfare.
Generally an LPA provides people with the ability to exercise a much greater degree of control over their future care in the event of loss of capacity. Making a personal welfare LPA needs careful consideration beforehand and may involve consultation with family members and medical practitioners.
Lasting Powers of Attorney can be complex and specialist legal advice should always be sought.
Contact us for more information or to arrange a consultation.