Who will take care of you?
The sad facts are that, “Over 820,000 people in the UK live with Alzheimer’s and other dementias. 1 in 3 over 65s will die with some form of dementia.” Oxford University study for Alzheimer’s Research Trust 2010
A Popular Misconception
Many people believe their spouse / partner or adult child automatically have the right to look after their affairs if they suffer from a mental illness and are unable to manage their own financial and personal concerns. It often comes as a huge shock to the family when they discover that legally they cannot!
The Facts
If you lose your mental capacity then your loved ones CANNOT automatically look after your affairs. Your bank accounts could be frozen (even joint accounts); bills could mount and family stress levels could rise rapidly. If you lose capacity, somebody must be appointed by the Court of Protection to look after your affairs (a Deputy). This is often a long drawn out procedure (up to 6 months); very costly and often very frustrating.
There are two types of Lasting Power of Attorney which can help avoid these costs and give your family or a friend the legal ability to care for you as you would wish:
- A Property and Affairs LPA allows the people you choose (your attorney/s) to look after your financial affairs when you are no longer able.
- A Health and Welfare LPA permits your attorney/s to act for you in matters concerning your personal affairs and welfare.
You will need to have two LPAs if you want your attorneys to take care of your property, finances, health and welfare.
Once your LPA’s are drafted they need to be registered with the Office of the Public Guardian before they can be used.
Other Benefits
An LPA can be useful even when you are of sound mind. For example, if you had to go into hospital for a few weeks, or were away on an extended holiday your attorney(s) can look after your financial affairs for you.
You cannot make a Lasting Power of Attorney once you are suffering from mental incapacity. You MUST make this decision whilst you are fit and well.
Safeguards
There are several safeguards in place to make sure that your attorneys act in your best interests. A registered LPA gives you the comfort of knowing that the people you have chosen can take of your affairs.
You will need a Certificate Provider – a professional who can assess your mental capacity and has knowledge of the relevant Mental Capacity legislation, or a friend who has known you for at least two years and is happy to sign to confirm your full understanding of the process and that you have not been pressured to make an LPA by another person.
Who can make an Lasting Power of Attorney?
Anyone who is over 18 and capable of understanding the document (known as the Donor).
We advise all our clients to consider having an LPA regardless of their age – anyone could suffer from an illness or accident that means that they cannot manage without help. An LPA can provide peace of mind for everyone, whether they are 18, 108 or anywhere in between.
What decisions can my Attorney/s make for me?
Your attorneys can make any decisions that you can make regarding the day-to-day running of your financial affairs, such as:
- Operating, closing or opening bank accounts;
- Instructing agents (solicitors, estate agents, Independent Financial Advisers) for you
- Claiming and receiving benefits for you
- Dealing with your tax affairs
- Paying your household expenses
- Buying, selling or letting your property
- Paying for your medical treatment or nursing care fees
- Making small gifts from you (for birthdays etc)
Your attorneys must only make decisions that are in your best interests.
Who can be appointed as my Attorney/s?
Anyone over the age of eighteen can be appointed although usually it would be a close family member or professional. It is important to remember that the Attorney will have complete control of your finances, unless you impose conditions or restrictions.
How many Attorneys can I have?
There is no limit but between one and four is sensible.
If I am suffering from some short-term memory loss, can I still make an LPA?
The Mental Capacity Act 2005 sets out the assumption that everyone has capacity unless or until it is clear that they do not. Carisma Wills consultants are trained to carry out an assessment of mental capacity and you may still be able to make LPAs if your memory is not as good as it once was. We will help you to make an LPA if we are certain that you understand the implications of making an LPA and that you are making the decisions through choice and without pressure from your attorneys. If we are in any doubt, with your permission, we will ask your medical practitioner or a Mental Capacity Advocate for their professional opinion.
If you would like any help or guidance about making your Lasting Powers of Attorney please get in touch.
Our professional, friendly (qualified and insured) advice is always FREE OF CHARGE.
