1 person in 50 between the ages of 65 to 70, and 1 in 20 aged between 70 to 80, suffer from dementia – these worrying rates are predicted to double within 20 years
Lasting Power of Attorney Advice
In half of cases the problem is caused by Alzheimer’s, which can be especially distressing for the sufferers families. But, if a lasting power of attorney (LPA) has been organised in time, friends or relatives can at least ensure that sufferers welfare and financial affairs are managed as they would have wished.
It makes vital sense to give create Lasting Powers of Attorney with your will as much of the information is similar. Like writing a will, if left too long, friends will be cut out and relatives needing to manage the financial affairs of the sufferer must apply to become a “Deputy” through the Court of Protection. This is a long (often over 6 months) and expensive business, and the Court may appoint the wrong people or even a solicitor.
It is most unwise to consider that Lasting Powers of Attorney are something just for “old” people. Accident, stroke or mental illness can happen at any time – whether you are 18 or 108. Having Lasting Powers of Attorney ready is crucial for your peace of mind, being certain that your financial and welfare matters will be kept in order by people you have chosen should you become unable to do so them yourself. The typical costs of setting up Lasting Powers of Attorney should be less than £200 for each one, plus any Court registration fee.
So what is a Lasting Power of Attorney and how does an LPA work ?
A general (not Lasting) power of attorney is a document giving another person (your attorney) the ability to manage your financial affairs and act on your behalf. This type of power of attorney is very cheap to set up and does not require Court registration – but it only remains valid for so long as you retain the ability to make such decisions yourself. Only
Lasting powers of attorney
will remain valid then, though they can only be used once they have been Registered with the Office of the Public Guardian. Lasting Powers of Attorney are designed to be used in cases where you lack the ability/ capacity, perhaps due to illness, an accident or the onset of dementia, and the Welfare Lasting Power of Attorney can only be used in these circumstances.
The Property and Affairs Lasting Power of Attorney
can be written so that it can be used as soon as Registration is complete, and older people would normally do this so that their Attorneys can start sorting out financial matters for them, thus taking away the burden.
No one else can create a Lasting Power of Attorney for you: you must organise your Lasting Power of Attorney while you are still able. Bear in mind that around 60% of us do lose the ability to make decisions at some time in their lives – through a simple trip over a paving stone or a stroke. By planning ahead and creating Lasting Powers of Attorney, you are can appoint people of your own choosing rather than leaving the choice to the Court of Protection. Give your instructions now, whilst you are of sound mind, just in case you are not able to do so tomorrow or next week. The Court will rarely appoint a partner and can appoint a solicitor to manage your affairs – at your expense!
Types of Lasting Powers of Attorney
The newer lasting power of attorney come in two varieties:
1) Lasting Power of Attorney Property and Financial Affairs
for your financial affairs
2) Lasting Power of Attorney Health and Welfare
which covers medical issues, where you live, who you see, welfare issues such as food, drink and clothes and matters of religious significance.
- Choosing where you live.
- Making basic decisions, such as what you eat or wear.
- Deciding with medical staff what medical care you will receive, including (if you wish it and authorise it in the Lasting Power of Attorney) if you will receive life-sustaining treatment. Many people do not wish to be kept alive artificially.
- Deciding if you should go on holiday and where.
- Deciding on such social activities as you might wish to participate in.
Attorneys are prevented from doing the following – only the Court can approve such decisions:
- Agreeing to put up a child up for adoption
- Consenting to sexual relations
- Giving medical treatment for mental disorder if such treatment is under Part IV of the 1983 Mental Health Act
- Voting in elections on your behalf
- Consenting to your marriage / civil partnership
- Consenting to divorce or dissolution of your civil partnership for two years’ separation
When a Lasting Power of Attorney comes into effect
A “Lasting Power of attorney Health and Personal welfare” requires registration before use. Once the Welfare LPA is registered, your attorney may not act on your behalf unless you have lost the capacity to make decisions yourself. It is prudent to register the LPA Welfare immediately as registration takes at least 3 months and you really do want it ready immediately if an accident should occur when your attorneys need to use it they can do so at once.
Lasting Power of Attorney Property and Financial Affairs
A “Lasting Power of Attorney Property and Financial Affairs” self evidently deals with your financial affairs. If someday you do suddenly lack the ability (“mental capacity”) to look after your financial affairs, this document will enable your property and affairs attorneys to do the following :
- Opening, closing or managing bank accounts
- Claiming pensions, benefits, allowances, services, rebates, financial contributions, repayments etc on your behalf and receiving them for you.
- Dealing with and signing tax returns and payments
- Paying household expenses
- Buying, leasing, selling property (but choosing it is a Welfare function)
- Paying for medical care and residential or home care costs
When the Lasting Power of Attorney Property and Financial Affairs comes into effect
A “Lasting power of Attorney Property and Financial Affairs” becomes usable by your chosen attorneys once it is registered with the Office of the Public Guardian unless you say in the Lasting Power of Attorney Property and Financial Affairs that you do not wish it to be used until after you lose the ability to make decisions: unlike the “Lasting Power of Attorney Health and Personal welfare” which cannot be used until after you have lost the ability to make decisions.
Safeguards with Lasting Powers of Attorney
It is vital that you trust the people you appoint as your attorneys. The Lasting Power of Attorney is an extremely powerful document. But there are safeguards to help prevent abuse of the system by your attorneys. They are:
- Any Lasting Power of Attorney must be registered before it can be used. The registration process is a safeguard because certain people have the ability to object to registration.
- You or your attorneys must give notice of intention to register your Lasting Power of Attorney, making sure that the ‘named persons’ in your Lasting Power of Attorney do get the chance to object should they feel anything untoward is going on.
- Your attorneys must follow the Mental Capacity Act Code of Practice which provides guidance. If they don’t, and neglect their duties, they can be guilty of a criminal offence, and even imprisoned – a major deterrent to wrong doing.
- If evidence is given to the Office of the Public Guardian that your attorneys are not looking after your best interests as they should, the Office of the Public Guardian will investigate and decide on what action needs to be taken
- You can place restrictions in your Lasting Power of Attorney concerning what you do or do not want your attorneys to do (though this is a very tricky area)