Most people are familiar with the idea of drawing up a Will to stipulate their wishes in the event of their death. However, another important consideration is to plan for who would deal with your affairs if you were to lose mental capacity and unable to make decisions independently.
Whilst it is a difficult to subject, by taking proactive steps when you have mental capacity, you can alleviate this worry for your loved ones and ensure that your finances and welfare are taken care of by somebody you implicitly trust. This is done by creating a legal document known as a Lasting Power of Attorney (“LPA”). You can create an LPA providing you are over 18 and have mental capacity at the time of signing the LPA. It is therefore crucial that the LPA is created in advance as, for many, an LPA is only considered when it is too late and the only option available is to make a make a more formal, costly court application.
Essentially, an LPA enables you to elect somebody of your choosing whom you trust, known as your “Attorney”, to take over responsibility for your welfare and/or financial affairs if you lack the mental capacity to make decisions. You may nominate anybody to act as your Attorney provided that the person is 18 or over, has mental capacity and not be a bankrupt. There are two types of LPA:
1. Property and Financial Affairs
This allows your Attorney to make decisions relating to your property and affairs. For example, dealing with your bills and other outgoing payments. Further, for this type of LPA, you have the flexibility to assign this responsibility to your Attorney, even if you have mental capacity to act. For instance, if you became physically unable to deal with your property or financial affairs or if you were travelling for 6 months and you instruct your Attorney to carry out affairs on your behalf whilst you are unable to, for whatever reason.
2. Health and Welfare
This allows the Attorney to make decisions on your behalf regarding your personal welfare, including giving or refusing consent to life-sustaining treatment and day to day routine such as diet. However, this LPA only comes into force once it is established by a medical professional that a person does not have mental capacity to make decisions independently.
For both types of LPA, you can specify your preferences and wishes regarding how you would like your property and finances dealt with and your wishes regarding your health and well-being.
It is crucial to note that if an LPA was not created and the unexpected were to happen whereby you lost mental capacity, your relatives would have to make an application to the Court of Protection to deal with your affairs. This is a very costly and often lengthy process which can cause difficulties when a loved one is not in good health and urgent decisions must be made. Our Wills and Probate department do deal with Court of Protection applications and if you need further guidance regarding making this application, please do not hesitate to get in touch with us and we can inform of you the process in more detail.
However, if an LPA has been created, this can be utilised if or when necessary and avoids the need for a Court of Protection application to be made.
If you require further information regarding Lasting Powers of Attorney, please do not hesitate to contact our specialist Wills and Probate team at [email protected] / 01702 338338 / 0208 049 5888 / 01277 500123.
This article does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. If you require specialist advice on this topic, please contact us to discuss how we may assist you.