Lasting Powers of Attorney
Take care of the those that are important to you
Take care of the those that are important to you
Most people know what a Will is and have an idea why they need to write a Will. However, not everybody is aware what Lasting Powers of Attorney are, how they work or what they do to protect them their loved ones and their assets.
A lot of people think that if something happens to them in the future, and they cannot make their own decisions about issues such as finances, property, healthcare or personal care for example, that their family or friends can simply take over. This is not the case.
Just as you need to make a will to determine what will happen to your assets when you die, you also need to put Lasting Powers of Attorney (LPAs) in place if you want to make the decision yourself as to what will happen to you should you lose mental capacity.
A Lasting Power of Attorney is a legal document that lets you appoint one or more people to help you make decisions or to make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions, commonly referred to as lack of capacity.
When you write your Will, you are putting in place plans to ensure that your wishes are carried out and your affairs are put in order should you die. Lasting Powers of Attorney are put in place so that if you become ill or are in an accident and you are unable to make your own decisions your attorneys can look after your financial affairs, pay your bills, your rent or your mortgage and where a health and welfare Lasting Powers of Attorney is put in place ensure that your wishes are carried out when relating to medical care, care home decisions and decisions to be made about your day-to-day care.
What are the different types of Lasting Powers of Attorney?
You use this type of LPA to give your attorney the power to make decisions about things like medical care, life-sustaining treatment, day to day care including dressing, washing and eating and if decisions need to be made regarding you moving into a care home. It can only be used when you are unable to make your own decisions and your attorney has a responsibility to carry out you wishes in regard to these matters making sure that you are cared for and decisions are made just as you would wish them to be. This type of LPA ensures that even though you cannot make decisions for yourself your attorney is making decisions in your best interest and not a medical expert or doctor
You use this type of LPA to give your attorney the power to make decisions about your finances and about your property should you be unable to make decisions for yourself. For example managing the paying of your bills, your rent or your mortgage, to collect your pension or to access your bank accounts or building society accounts or savings to be able to pay your bills and meet your financial reasonability’s so that even though you cannot make decisions for yourself your attorney is making sure your finances are managed in your best interests
A health and welfare LPA will allow the person appointed on your behalf, the attorney, to make decisions on your behalf about your health and welfare if there comes a time when you are unable to make those decisions for yourself. Health and welfare decisions could include decisions about where you live, your day-to-day care including your diet, who you may have contact with and consenting to, or refusing medical examination and treatment.
You can also give your attorney the power to accept or refuse life-sustaining treatment on your behalf.
Many people are anxious to ensure that their property and financial affairs are looked after in the event that they are unable to do so themselves but, often postpone making a health and welfare LPA preferring to leave it to ‘another day’ and often that day never comes, or it becomes too late.
If you do not have a health and welfare LPA in place and you lack capacity to make such decisions yourself a family member will be faced with applying to the Court of Protection for a Deputyship Order. What many people do not know however, is that Health and Welfare Deputyship Orders are granted much more sparingly, and many are rejected by the Court. The Court will only appoint a Health and Welfare Deputy as a last resort, and it is much more expensive and time-consuming compared with having a Health and Welfare LPA.
In the absence of a health and welfare LPA or a Deputyship order, the Mental Capacity Act gives a general authority to allow decision makers to take action in providing care for individuals who lack capacity, as long as those decisions are in the best interests of the incapacitated individual, and all reasonable steps have been made to ensure the person in question cannot make the decision himself. The difficulty with this is that these ‘decision makers’ often have competing objectives. For example, to balance out what is in the best interests of the patient verses the costs considerations of providing that care. If you have a health and welfare LPA in place and have communicated your wishes to your attorneys, it can maximise your chances of having your wishes protected in the future.
A property and financial Lasting Powers of Attorney is a document that appoints a person or sometimes an institution such as a bank, a trust company or a solicitor to handle someone’s financial affairs. A Lasting Powers of Attorney for finances can also be used to make life easier for parents or loved ones when administering the finances of someone close. A Lasting Powers of Attorney for finances is used to handle all financial matters when someone becomes incapable of doing so themselves.
A property and financial Lasting Powers of Attorney can be used to ease the burden of handling financial affairs. The document can allow the appointed person, referred to as an attorney to handle everyday financial matters such as paying rent, paying mortgage payments whilst a person is incapacitated, insurance payments or doctor’s bills as well as major matters such as sale of assets or the management of a business, property or investments.
An attorney may need to access funds owned by the person in order to pay for care or medical treatment.
Perhaps the most important duty of an attorney is the duty to act in the best interests of the donor. Therefore, any transactions or payments an attorney makes on a donor’s behalf must always be in line with their best interests.
What can happen if you do not have Lasting Powers of Attorney in place?
If you cannot make a decision about your medical treatment, care or welfare and you have not completed a Lasting Power of Attorney then a health or social care professional such as a doctor or a social worker will make a decision on your behalf. They are bound by law to make a decision that is in your ‘best interests’ but any decision made may not be in line with your wishes.
If you do not have the capacity to make a decision about your medical treatment your doctor will decide what treatment to give you. They are legally and ethically obliged to base their decision on what they believe is in your best interests, but there is no guarantee that their decision will reflect what you would actually want.
Your doctor should speak to your family members and others close to you, but he or she does not legally have to follow what they say. This means that if you have not completed a Lasting Power of Attorney the doctor has the final say about what treatments you receive. Your loved ones can challenge the doctor’s decision in the Court of Protection, but this can be very costly and time-consuming and ultimately the final decision will then lie with the judge, not with your family members or those close to you.
If you are married or in a civil partnership, you may assume that your spouse would automatically be able to deal with your bank account or pensions and be able to make decisions about your healthcare should you lose the ability to do so. This is not the case. Without Lasting Powers of Attorney in place your partner married or not will not have the authority.