I have just made Lasting Powers of Attorney (‘LPAs’). As part of my job, I advise clients to do the same as part of their estate planning. Thinking and talking about what would happen if you lost your mental capacity to make decisions about your property and financial affairs and health and welfare can be very uncomfortable. However, it is far more important to think about how much worse the situation would be for you if you suffered a stroke or was involved in a serious accident or had dementia without making LPAs first.
An LPA is a legal document made by an individual, while they still have mental capacity, which nominates a trusted person who could be a relative or friend to look after their property and finances or make decisions about their health and welfare when they are unable to make such decisions themselves.
The important issue here is that LPAs are not effective until they are registered with the Office of the Public Guardian. With the LPA for property and financial affairs, this can be used as soon as it has been registered. With the LPA for health and welfare, it must be registered with the Office of the Public Guardian but the person making the LPA must also have lost their mental capacity to make those decisions themselves. You do not suddenly have to give up control once you have made LPAs. You can choose whether your LPAs can be used either before or only when you have lost mental capacity.
The ownership of LPAs belongs to the person who has made them. If you have not chosen to authorise your attorneys to use your LPAs, your attorney should only ever make a decision for you if you are unable to make that decision for yourself at the time it needs to be made. You should be given as much freedom as possible by your attorney to make your own decisions. Your attorney should also respect your decisions about your money and/or property or health and welfare even if the decisions might be unwise ones. A person is deemed to have mental capacity until and unless it is proven otherwise. This is underpinned by the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice.
LPAs therefore give you more control over your affairs. If you have not made LPAs and you lose your mental capacity whether through illness or an accident, then any persons having to take control of your financial affairs, will have to apply to the Court of Protection for them to determine whether that person will be a suitable deputy to deal with your financial affairs. An application to the Court of Protection for an Order to make decisions regarding a person’s health and welfare is far more difficult to obtain.
If you would like more information on an LPA please get in touch.