Powers of attorney and the Mental Capacity Act 2005

Have you ever thought about who you would like to make decisions for you if you become unable to do so?

At Eric Robinson Solicitors our friendly team of solicitors will guide you through the process. We’ll talk to you about putting in place a lasting power of attorney for the future, and we’ll help you deal with your concerns about a loved one’s continuing ability to look after their own affairs.

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There are two types of lasting powers of attorney: a lasting power of attorney for property and financial affairs and a lasting power of attorney for health and welfare.

A lasting power of attorney (LPA) for property and financial affairs can be put in place by an individual to appoint somebody to look after their property and financial affairs. It can be made before or after mental capacity is lost.  This can be particularly useful if it is physically difficult to get to the bank to deal with your money and can continue to be used if the donor (the person who appoints the attorney to make decisions on their behalf) were to lose capacity. Your attorney(s) must be guided by the principles of the Mental Capacity Act and, unless you have lost mental capacity, must consult with you on all decisions.

A lasting power of attorney (LPA) for health and welfare can only be used by an appointed attorney if the donor no longer has capacity to make a decision for themselves. The document will ensure that an individual that you want, rather than an ‘outsider’, can make a decision about your medication, where you should live, who should care for you and who should visit you.  You could also give your attorney authority to make decisions about life-sustaining treatment. These documents are particularly useful if there is a dispute between family members and the medical practitioners or social services involved in a loved one’s care.

We can prepare documents on a fixed fee basis so you can be sure of the costs involved from the start.  Here are our top tips for putting an LPA in place:

AN LPA IS PROTECTION FOR THE FUTURE
None of us like to think that, at some point in our lives, we may become unable to make decisions about ourselves, for ourselves. But unfortunately, sometimes that is the reality.

An LPA is a legal document which can be put in place now, appointing someone (an “attorney”) to look after your finances and your welfare should you begin to lack the mental capacity to do so. You might not need to call on the LPA, but it can be reassuring to know that it is there.

FAMILY DOESN’T ALWAYS COME FIRST
It may go against the grain, but don’t assume that family members will always be the ones to step in when things become difficult for you.

If you don’t make an LPA there is no guarantee that, if you become mentally incapable in the future, your family or those close to you would be able to make decisions about your assets or future care. The Court of Protection would decide what should happen if there was a conflict.

THERE IS MORE THAN ONE TYPE OF LPA
As mentioned above, there are two. The first covers property and financial affairs. Your appointed attorney or attorneys can make a range of decisions about your home, your income and your assets. Should you sell your property? Are your tax affairs in order? Are you claiming the right benefits? These are all things which can be looked after on your behalf.

The second type of LPA is to do with your health and welfare. An attorney can decide where you should live, they can give consent for or refuse medical treatment on your behalf, and they will consider your day-to-day care including diet and dress.

WHEN TO MAKE AN LPA
There’s no time like the present. A valid LPA can only be made by a mentally capable person: someone who is currently able to make decisions on their own behalf.

If you have lost the mental capacity to deal with your affairs then you can’t make an LPA. In that situation, a family member or another interested party, for example social services would need to apply to the court for a Deputyship Order. That takes time and can be expensive and, perhaps most significantly, leaves no one appointed to look after your affairs in the meantime, and the Deputyship Order may not necessarily be for someone you would have chosen.

CHOOSING AN ATTORNEY
The attorney is given a great deal of power over some of the most important decisions about you. Appoint someone you can trust to act in your best interests and to follow the principals and procedures associated with the role of attorney. It helps if that person already has some understanding of what they may be required to do.

You may wish to appoint a family member or somebody who is close to you. If you don’t feel that you know anyone suitable, then it is a good idea to appoint an experienced professional. The Partners at Eric Robinson Solicitors would be more than happy to act on your behalf in those circumstances for property and financial LPAs.

ATTORNEYS NEEDN’T GO IT ALONE
You can appoint more than one attorney. It is worth thinking carefully about the detail of this; do you want them to act jointly or jointly and severally, or jointly in some circumstances and severally in others?

If you appoint your attorneys to act jointly, then it means they have to act together in all decisions. If you appoint them jointly and severally then they can act alone or together in those decisions and therefore the decision-making can be more flexible.

It is also possible to appoint a substitute attorney to cover situations where an attorney dies or refuses to act.

You can also add restrictions or guidance so your attorneys are clear about your wishes (i.e. your care, where you live etc) in case you are unable to tell them yourself. Whereas if you do not make an LPA, the Deputy under a Deputyship Order may not know what you would have wanted.

INDEPENDENT ADVICE IS A PREREQUISITE
An LPA cannot come into being until an independent third party signs a certificate confirming that they have explained the purpose and scope of the LPA to you. There must have been no undue pressure or force involved in the decision to make the LPA, and the Certificate Provider also has to confirm that there is no other reason why the LPA ought not to be created.

Specialist lawyers at Eric Robinson Solicitors can act as your Certificate Provider.

IT IS A GOOD IDEA TO ACTIVATE YOUR LPA STRAIGHT AWAY
The LPA must be registered with the Office of the Public Guardian before it can be used. Once registered, the LPA is active.

The property and financial affairs LPA can be used whilst you still have mental capacity (unless it is specified that it cannot). But a health and welfare LPA can be only used when you no longer have capacity. The registration process can take approximately three months and so most people prefer to make and register their LPA immediately. It means that if they lose their mental capacity, they don’t have to wait for the document to be formalised and activated.

Eric Robinson Solicitors will be able to deal with the registration on your behalf.

IT PAYS TO BE PREPARED
There may be nothing wrong with your mental health now. Sadly, that could change.

Making an LPA is money well spent because the alternative is expensive and time consuming. If you become mentally incapable and no attorney has been appointed, relatives or some interested parties would have to apply to the Court of Protection for a Deputyship Order. That means asking the Court to appoint a “Deputy” to make decisions on your behalf. The application requires a doctor’s certificate, a mass of paperwork and a court hearing.

If you make an LPA while you have mental capacity then you are ensuring that full provision is made for the future.

HOW MUCH DOES A LASTING POWER OF ATTORNEY COST?
The cost of a Lasting Power of Attorney depends on whether you wish to make a property and financial affairs Lasting Power of Attorney or a health and welfare Lasting Power of Attorney or both. Please see the separate price list as to the cost. If you wish to register the Lasting Power of Attorney then the Court fee per document is £110.00 which is payable to the Office of Public Guardian.