Being unable to make decisions for yourself due to loss of mental capacity is a daunting prospect. Loss of mental capacity can take many forms with dementia, the effects of a stroke and a brain injury being the most common. This does not tell the whole story as sometimes elderly people will simply become frail and as a result become less interested in their affairs generally and less inclined to make decisions.
A Lasting Power of Attorney (LPA) is a legal document that enables you appoint someone to make decisions for you, either in the event you are unable to make those decisions yourself, or if you feel for personal reasons that you need assistance generally with the management of your affairs.
Types of LPA
There are two different types of LPA. One relates to decisions about your property and finances, and the other concerns decisions about your health and welfare.
The decisions an attorney may make about your property and finances can vary considerably and may change as your circumstances change. Attorneys duties can range from simple day to day decisions such as paying bills, claiming state benefits or completing a tax return through to more significant decisions such as selling your house or dealing with estate planning matters.
The decisions an attorney can make about your health and welfare can also vary considerably. These can range from simple day to day issues such as your diet or what you wear through to the authority to consent to the continuation or withdrawal of life sustaining treatment on your behalf. Unlike LPAs in relation to property and finances, LPAs for health and welfare cannot be used by an attorney unless the person concerned has lost mental capacity.
All attorney decisions must always be made in your best interests.
Court of Protection
It is a common misunderstanding that you can delay making an LPA until you need it. This is because when an LPA is made the person making it must understand the concept of an LPA and be able to communicate this. This is not always possible, particularly if that person has suffered a stroke or has dementia. In those cases it may be that it is too late to make an LPA. This creates a situation where decisions still need to be made but no one has the legal authority to do so. The only option at that stage (assuming that there is no prospect of recovery) is for someone (usually a family member) to make an application to the Court of Protection to lead to their appointment as that person’s deputy. This is a time consuming and administratively burdensome process that can result in significant legal costs and court fees.
Once a deputy has been appointed by the Court they are generally able to carry out the same functions as an attorney would do under an LPA, although in some cases their authority may be limited by the Court Order. For example, a specific separate order may be required to sell a property. All deputies act under the strict supervision of the Office of the Public Guardian (OPG). In practice this means that deputies must file an annual report with the OPG detailing all transactions that have been carried out and decisions made. The OPG has extensive powers to investigate deputies conduct and in some cases can apply to the Court for the removal of an unsuitable deputy.
To arrange a free telephone consultation to discuss LPAs please fill in the contact form on this page or email us at firstname.lastname@example.org or contact us on 01708 229444 (Upminster Office), 01277 211755 (Brentwood Office) or 01708 511000 (Hornchurch Office)
This article was written by Matthew Edwards, Partner in the Private Client Team at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of July 2020.