Like Wills, this is a topic where people often need encouragement to ‘grasp the nettle’. It is painful for us to imagine ever being in a situation where we will not have complete control of our own affairs; but the brutal reality is that disaster can strike any of us at any time. Anyone of any age can have an accident. Many of us will suffer an unexpected stroke or heart attack – and as we live longer an increasing number of us will succumb to dementia. There are currently approaching one million sufferers of dementia in this country and the number is rising fast.
Making a Lasting Power of Attorney (‘LPA’) is in some ways similar to taking out an insurance policy. We hope that we shall never need to use it but there is peace of mind to be had from knowing that if things go wrong we have done the best we can to limit the damage. Making an LPA is the responsible thing to do.
There are two types of LPA – the first deals with property and affairs (finances, bricks and mortar) and the other with health and welfare (what care you receive, where you should live etc.) You can make both types of LPA or just one depending upon your circumstances.
So how will having made a Lasting Power of Attorney help my situation if I fall ill?
In terms of finances it is commonly believed that if a person loses their capacity to manage their affairs a close member of the family can simply take over the reins for them. That is not the case (even for a spouse) unless the proper paperwork is in place. If you have not made an LPA your assets will be frozen leading to problems paying bills, claiming pensions and entitlements and making decisions regarding property and investments.
It is also commonly thought that putting assets into joint names will overcome any problems arising from the loss of one account holder’s capacity. Again that is not the case. Most banks and financial institutions freeze joint holdings when one holder becomes incapable of making decisions, meaning that the healthy account holder cannot even access their own funds, let alone those of the incapacitated holder.
In terms of both finance and welfare if you become unwell and have not made an LPA then it will be necessary for someone (a ‘Deputy’) to be appointed by the Court of Protection to make decisions for you to the extent that you are unable to do so yourself. This may not be a person you would have chosen – and may even be someone you do not know. The Deputy’s job will be similar to that of an Attorney appointed by you but the cost to you will be considerably higher and the Deputy may not be best placed to know, and therefore reflect in what he or she does, the decisions you would have made yourself had you retained your capacity.
Why should I make an LPA now? Would it not be better to wait and see if I lose my capacity and do it if and when I do?
You can only make an LPA whilst you have the mental capacity to understand the effect of doing so. It is all too easy to leave things too late! In case of a sudden accident or illness the lack of an LPA poses a particular problem.
So should I make an LPA now but delay registering it until the time comes for it to be used?
An LPA cannot be used until it is registered at the Office of the Public Guardian. The registration process takes several weeks. In the event of you suffering a sudden catastrophe (a stroke, heart attack or accident for example), your Attorney may need to use the LPA immediately to pay for your care or handle your household expenses, but will not be able to do that if the LPA is not registered. Quite apart from the problems the delays caused by the registration will create it is likely that your Attorney will have quite enough to do trying to deal with your day to day affairs without also having to deal with making a registration application! It is good practice to register the LPA as soon as it is made so that it is ready for immediate use should the need arise.
But if I make an LPA and register it now will that not mean that my affairs can immediately be taken over by my Attorney straight away even though I am still perfectly capable of managing things myself?
No. As long as you have capacity to make decisions yourself your Attorney may not interfere with what you decide. Even when someone is losing capacity their Attorney must still consult with them wherever possible and allow them to make what decisions they can themselves.
What is involved in making an LPA?
The process is bureaucratic but not inherently complex. However, it does require some careful thought by you. It is easy, for example, to assume that one should appoint one’s spouse or child (or children) to act as Attorney. In many cases that will be the case, but in many others it most certainly will not. For example if a spouse is of a similar age to you their appointment as sole Attorney may be inappropriate should your incapacity be caused by dementia. They may have health problems of their own to deal with at a time when they will undoubtedly be upset and stressed by what is happening to you.
Similarly the choice of one child over others may in some cases cause tensions between them and their siblings. – And the appointment of all your children may be unwise if they are not close to each other, if one is more dominant than the others or if they do not live close to each other (and/or you).
When choosing your Attorney(s) you should bear in mind how comfortable they will be making decisions for you. (There will be little point appointing someone who has always been hopeless with money as your Attorney for property and affairs, or someone who does not share your views on medical matters as your welfare Attorney!) Whoever you appoint should be someone whom you know you can trust absolutely and with whom you are comfortable to discuss your views, so that should they need to take over your affairs they will be running things for you as you would wish. It is also easy to forget that the role of Attorney can be very time-consuming. The person you choose should be someone who will have time to do what is necessary for you. The right person may be a member of the family but could equally well be a trusted friend or professional with relevant experience.
You may also wish to consider whether you should restrict the decisions your Attorney can make for you in any way, or include guidance in the document as to how they should deal with particular situations.
Do I need to have an LPA professionally prepared?
No. You can fill in the relevant forms on line or obtain them from the Court, fill them in yourself and post them. But for something as important as setting up an arrangement which will potentially give someone authority to deal with everything they own and their personal care at a time when they will be at their most vulnerable most people prefer to talk things over with and have their papers prepared and registered by a professional who understands the ropes – and the importance of how restrictions and/or guidance should be phrased in the LPA to avoid pitfalls.
See also General Powers of Attorney.