What happens to us when we lose our mental capacity?
Mental capacity is very often taken for granted. Nowadays, progressive mental illnesses, such as dementia, mean that whilst we may be in good physical health, our mental health can rapidly decline and we can quickly lose the mental capacity to deal with our financial decisions. If this happens and there is no Lasting Power of Attorney (LPA) in place, it can be a very costly and lengthy process involving the Court of Protection where decisions will need to be made on your behalf by another party. Often, this may be someone who does not know you such as Social Services and has no idea about your wishes or feelings. This person, known as a Deputy, may also be able to charge certain fees for looking after your property and affairs and would have the power to sell your home to pay for any care home fees if this were deemed necessary.
This can be avoided if you were to give power to another person (your attorney) whilst you still have the capacity to do so. This will be registered in advance with the Office of the Public Guardian and if you were ever to lose the capacity to deal with your own Property & Financial affairs, then the process for your attorney to step in and do so would be very straightforward. Your attorney can be a family member, friend or a solicitor or other professional. You can have more than one attorney if you wish.
As well as making decisions about finances, you can give the power to your attorney to make decisions about your own Health and Welfare. This is equally important, especially if you have strong views about whether you wish to move to a care home or want to remain in your own home for as long as possible. Also, you can express your wishes about whether or not you wish to receive life sustaining treatment.
Having the power now to specify your wishes can mean that you have a degree of control over your future financial affairs and matters concerning your own health and welfare.
Paladin Advocates & Attorneys specialise in preparing Lasting Power of Attorney documents and will also register this at the Office of the Public Guardian on your behalf. If you do not have a friend or relative that you wish to appoint as an attorney, Paladin Advocates & Attorneys can act as an attorney for their clients.
Types of Lasting Powers of Attorney
Property and Financial Affairs Lasting Power of Attorney
This allows you to appoint an Attorney who can make decisions about how your money is spent, and how your property and financial affairs are managed.
A Property and Financial Affairs Lasting Power of Attorney can come into force as soon as it is registered, or you can restrict it so that it can be used only in the event that you lose the mental capacity to manage your own affairs. Depending on how the Power of Attorney is set up, your Attorney can be given authority to do any or all of the following on your behalf:
- Manage your bank accounts and other financial accounts, including opening or closing accounts;
- Deal with your taxes;
- Deal with the buying and selling of investments and property;
- Claim, receive and use any welfare benefits you are entitled to on your behalf;
- Make gifts on your behalf.
There are safeguards in place to ensure that your attorney acts in your best interests at all times. In particular, Attorneys must always act according to the five principles of the Mental Capacity Act and ensure that decisions taken are in your best interests.
Health and Welfare Lasting Power of Attorney
A Health & Welfare Lasting Power of Attorney allows you to appoint an Attorney (or more than one) to make decisions about your health care, and your personal welfare. This type of Lasting Power of Attorney can only be used after it is registered and you no longer have capacity to decide for yourself.
Making a Health & Welfare Lasting Power of Attorney requires careful consideration, consult with your family and perhaps your doctor, as well as a solicitor, before setting one up.
Depending on how the Lasting Power of Attorney is set up, your Attorney can be given authority over any or all of the following:
- Where you will live, and who you will live with
- The people you should have contact with
- Arrangements for community care services
- Managing complaints about your care or treatment
- Dealing with your personal correspondence and papers
- Controlling access to personal information about you
- Decisions over whether you should take part in social or leisure activities, or training and education
- Decisions about your everyday care, including your diet and dress
- Decisions about medical care, including consenting to or refusing examination and treatment. For your protection, there are safeguards in place to ensure that your Attorney can only consent to or refuse life-saving or life-prolonging medical treatment if authorized by your Lasting Power of Attorney.
As with the Property and Financial Affairs Lasting Power of Attorney, there are safeguards in place to ensure that your Attorney acts in your best interests at all times.
Enduring Powers of Attorney
Do you have an Enduring Power of Attorney signed and witnessed prior to 1 October 2007?
Enduring Powers of Attorney, also referred to as EPAs, are the old documents which were in existence prior to the implementation of the new types of Lasting Powers of Attorney. Enduring Powers of Attorney only cover your property and financial affairs whereas the new Lasting Powers of Attorney cover your Property and Financial affairs and your Health and Welfare.
If you have an Enduring Power of Attorney signed and witnessed prior to 1 October 2007 you can continue to use it or cancel it and setup the new Lasting Powers of Attorney documents.
Unlike the new Lasting Power of Attorney forms, EPAs are only registered when the donor loses capacity to manage their financial affairs.
It is strongly advisable if you do have an Enduring power of Attorney in place and you still retain the capacity to make the new style Lasting Powers of Attorney as they are much more flexible and cover both your Health and Finances.
Contact the Paladin Advocates and Attorneys team to discuss your Enduring or Lasting Powers of Attorney today on 01822 610303.