Most of us are aware of the importance of having a will, but few people know that they should also have a Lasting Power of Attorney in place. A Lasting Power of Attorney (LPA) gives trusted individuals the ability to manage your financial affairs or aspects of your health and welfare, should you become mentally incapacitated.
The Alzheimer's Society predicts that by 2025, over one million people across the UK will have dementia, with more than one in five people over the age of 85 already suffering from the condition. But mental and physical incapacity does not just affect the elderly: more than 17,000 younger people are known to suffer from dementia in the UK, and it is thought that the true figure is likely to be as much as three times higher. Illnesses and accidents can also leave young people mentally incapacitated and without the ability to manage their personal affairs, either temporarily or permanently.
The dangers of not making an LPA
If you are diagnosed as mentally incapacitated and you have not made an LPA, the potential burden on your family can be quite significant. An application must be made to the Court of Protection who can appoint an attorney (called a ‘deputy’) to make decisions on your behalf. This can sometimes be a lengthy and very expensive process, and your family will not be able to deal with your affairs until a Court Order has been made.
It is a sensible precaution to have an LPA in place as part of your future planning, giving you the ability to choose who should handle your affairs and how they should be dealt with, should the worst happen. It is possible to make an LPA even if a diagnosis of dementia has been made already, provided that you still have the mental capacity to do so.
Choosing an attorney and setting up an LPA
LPAs are legal documents that are accepted by financial institutions and care homes as well as tax, pensions, benefits and local authorities. They come in two forms: the property and financial affairs LPA, and the personal welfare LPA. The property and financial affairs LPA may be used even though you still have mental capacity, covering decisions such as dealing with bills, investing your money, buying and selling your property, and running your bank accounts. A personal welfare LPA can only be used when you no longer have mental capacity, and this typically covers decisions as to where you live, who you may have contact with, what you may eat and your medical treatment.
By creating an LPA while you have mental capacity, you will be able to choose your attorney(s) and specify or restrict the type of decisions that they can make for you. Your choice of attorney must be prepared to take on the role and in addition, must be over the age of 18 and not bankrupt. It will be your attorney’s responsibility to make decisions in your best interests and they are required to follow the principles of the Mental Capacity Act, which aims to ensure you are involved with making decisions wherever possible.
Using a solicitor for your LPA
You should always take independent legal advice before signing an LPA. It is a powerful document which can be complex to draft and if errors are made, the Office of the Public Guardian may intervene - ruling for example that a particular restriction is to be ignored or even that the LPA is invalid. This can mean that your affairs are not handled in accordance with your wishes.
Whether you are facing a diagnosis of dementia or you are considering an LPA as part of your future planning, our experienced team will offer you straightforward, practical advice on the best way forward to ensure your security and peace of mind.
In the event that a loved one is diagnosed mentally incapacitated and has not made an LPA, we can also provide advice on applications to the Court of Protection and offer representation at hearings where necessary.