Planning for the unthinkable

None of us knows what the future holds for our health and wellbeing, and that of our loved ones. Considering this and planning for the unimaginable is not easy to do, but as Shelley Collingbourne, Partner and Lucy Mitchell, Senior Legal Advisor in our Wills, Trusts and Probate team explain, having a Power of Attorney is sensible at any time of life.

Life-changing

Whether it’s as a consequence of an accident or serious health diagnosis these will have a deverstating impact. To put this into context, in May alone, 240 people in the UK will suffer the life-changing effects of a stroke, which is Stroke Awareness Month in the UK, an annual event run by the Stroke Awareness Charity.
We all want to believe we will always be fit and healthy. What is harder to consider – and accept – is that life could quickly take an unexpected and difficult turn.
Getting your legal affairs documents in order is one of the best ways to prepare for any health eventuality. Not only does this include writing a will – which should be updated every four or five years or when there has been any changes in personal, family and business circumstances – but also Lasting Powers of Attorney and General Powers of Attorney.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint someone you know and trust (attorneys) to make financial and health decisions, should you lose capacity to make decisions yourself. There are two types:

1. Property and Financial Affairs LPA

This gives attorneys authority to act on your behalf whilst you have the mental capacity to make decisions concerning your financial affairs and assets, and also allows them to make those decisions if you were to become unable to do so. It gives attorneys authority to:

Manage bank accounts.
Buy and sell property on your behalf.
Deal with investments and pensions.
Receive payments or inheritances due to you on your behalf.
Pay bills on your behalf.

You can include guidance, or specific wishes or instructions that you want attorneys to be aware of or bound by.

2. Health and Welfare LPA

This power can only be used by your attorneys if you have lost mental capacity to make a specific decision. It allows attorneys to make decisions you are unable to make regarding your personal welfare on your behalf, such as:

Deciding where you live eg .at home or in a care placement.
What kind of day to day care you receive.
Giving consent for or arranging medical treatment.

What is required for an LPA?

You must have the necessary mental capacity to make an LPA, having an independent person act as your Certificate Provider is a requirement. The Certificate Provider confirms that at the time of making the LPA, you understand its scope and purpose, and that you are not being pressured to make the LPA. In order for the documents to be effective, the LPAs must be registered with the Office of the Public Guardian (OPG).

What is a General Power of Attorney?

A General Power of Attorney is a legal document giving one or more people the authority to help you manage your financial and property affairs. It is very flexible and can be restricted to allow attorneys to deal with a specific matter on your behalf, such as a house sale/purchase, or can be limited for a specific time period.
It does not need to be registered with the OPG before it can be used. However, it can only be used by your attorneys if you have mental capacity at the point of the transaction. Therefore, it can be useful as an interim document when preparing an LPA and awaiting it’s registration with the OPG, which can take several months. When the LPA is registered and available to be used, the General Power of Attorney should be revoked.

Enduring Power of Attorney

Prior to the introduction of Lasting Powers of Attorney in October 2007, it was possible to prepare an Enduring Power of Attorney, which allowed the appointment of attorneys to make decisions and deal with property and financial affairs only. An Enduring Power of Attorney is less flexible than an LPA and does not allow attorneys to make decisions about Health and Welfare on your behalf.

Court of Protection and Deputyship

We are often asked whether there is anything that can be done to allow someone to deal with the affairs of a person who has already become mentally incapable of managing their own affairs , but who doesn’t have an Enduring Power of Attorney or a Lasting Power of Attorney.

Fortunately, there is a solution.

The Court of Protection is a part of the Court system in England and Wales, with responsibility for matters involving vulnerable adults. The Court is able to appoint people (often family members) to manage the affairs of those individuals and who lack the mental capacity to make decisions about their own affairs such as to their finances and property and in some cases, their health and welfare,who have not appointed Attorneys.
The Court appoints what is called deputies to take on these duties, and one or more people can apply to the Court of Protection to become a deputy. These are usually the family or friends of the person who lacks mental capacity, but can also be professional deputy(s) if no-one is able or willing to act.They must be at least 18 years of age and have the appropriate skills to take on what can sometimes be an onerous role.

How does the Court decide that a person lacks capacity?

There are many reasons someone may be considered to lack the capacity required to manage their own affairs, for example:

They have suffered a medical health e.g., a stroke; or
Have an underlying illness or injury which affects their cognitive abilities; or
They have dementia; or
They have severe learning difficulties or disabilities.

As part of the application, medical evidence needs to be submitted to the Court to confirm that the person can no longer reliably make decisions for themself. The person’s doctor or consultant sometimes provides this evidence, but if that isn’t possible, then an independent capacity assessor can be instructed to prepare the necessary document to support the application.

Types of Deputyships

There are two types of Deputyship orders the Court can make:

Property and Financial Affairs order: allowing the deputy(s) to deal with monetary matters, for example, paying bills, selling property, making gifts and maintaining financial stability. This type of application represents the vast majority of submissions to the Court.
Personal Health and Welfare order: allowing the deputy(s) to make decisions about health and welfare matters, for example the types of medical treatment, type of care they have and where they receive it.

How do you apply to be appointed as a Deputy?

The application forms the Court require are lengthy, and designed to collect as much information as possible about the person who lacks capacity, including where they live, what monies they have, any other assets they own or may be entitled to, their income and their expenditure.
The medical evidence enables the Court to be certain that the appointment of a deputy is absolutely necessary. The Court will consider the information provided and will ensure that certain interested parties, including the person lacking capacity, are informed of the application
Once a decision is reached, the Court requires the deputy(s) to provide a Bond (a kind of insurance policy) before issuing the Deputyship Order.
It is not unusual for the process to take 6 to 12 months.

For help with Power of Attorney, Court of protection applications, and wills, contact Sydney Mitchell on 0808 166 8860. For information about Stroke Awareness Month visit: Stroke Awareness Month | Stroke Association