It’s crucial to understand that you can’t set up a Lasting Power of Attorney once you lose mental capacity. So, for example, if you were in an accident tomorrow and lost mental capacity, nobody would be able to manage your affairs without a Deputyship Order – not even your partner or grown-up children. These orders are currently taking between 34 and 47 weeks to obtain for finance, or more than a year for health, on average.
Once completed, Lasting Powers of Attorney can also take some time to register – 10 to 12 weeks is typical. Until they are registered, they cannot be used. So it’s wise to start the process as soon as possible.
People think, ‘I’m not ill, why do I need to make a Power of Attorney?’. But they’re missing the point. This is a document that has to be done in advance.
~ Paul King, TEP, April King Nottingham Office
“What exactly is a Lasting Power of Attorney?”
Without a Lasting Power of Attorney, those close to us have no power to make decisions for us from day-to-day.
There are two types of Lasting Power of Attorney and it is advisable to have both.
The Property and Financial Affairs Lasting Power of Attorney can be used for decisions such as:
- Paying household, care and other bills.
- Claiming, receiving and using benefits, pensions and allowances.
- Making or selling investments.
- Buying or selling your home.
This type of Lasting Power of Attorney is a very convenient document that can be used if:
- You lose mental capacity because of illness or injury.
- You are away from home and want someone to handle a problem for you.
- You are in hospital and want someone else to manage your affairs.
In fact, this document can be used any time after it has been registered, with your permission (even though you have not lost mental capacity).
The Health and Welfare Lasting Power of Attorney can be used for decisions such as:
- The type of medical care you receive.
- Whether you stay in your home or move into residential care.
- What you eat from day to day.
- Your daily routine – dressing, going out etc.
This document can only be used (once registered) if you have lost mental capacity and are unlikely to make a recovery within a reasonable time.
Ask yourself who you would want to make these type of decisions if you could not make them yourself.
For many of us, there will be an obvious choice – a partner or a grown-up child who we trust. But without a Lasting Power of Attorney, this person will have no power to make those decisions for us from day-to-day. Of course, they could apply for a Deputyship Order, but they may be unable to take on this responsibility and someone else may be given the power instead. All of this can be avoided by making a Lasting Power of Attorney.
“What does it mean to have ‘mental capacity’?”
It is important to make an LPA while you are still in good health – keeping in mind that illness can strike suddenly at any time.
‘Mental capacity’ is about being able to make your own decisions. You won’t be able to make a Lasting Power of Attorney if you lose mental capacity.
You’ll hear the term ‘mental capacity’ a lot when you’re reading about Lasting Powers of Attorney. Most of us make decisions daily about every aspect of our lives. Being able to make these decisions is called mental capacity.
Illness, injury or various conditions prevent us from making decisions, or mean that we cannot make all of the decisions ourselves. For example, learning disabilities, brain injuries, dementia or a stroke can all impact our ability to make decisions.
However, some people get confused with the term ‘mental capacity’, thinking that it refers to mental illness. Having a mental health condition does not necessarily mean that a person lacks capacity. Just because they are suffering from depression, schizophrenia or bipolar, for example, does not necessarily prevent them from making decisions for themselves.
The law actually defines under what circumstances someone lacks mental capacity. The Mental Capacity Act 2005 says:
“…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”
The Act further explains that a person is unable to make decisions for themselves if they cannot:
- understand the information relevant to the decision,
- retain that information,
- use or weigh that information as part of the process of making the decision, or
- communicate their decision (whether by talking, using sign language or any other means).
At the time of making a Lasting Power of Attorney, you must have mental capacity. A ‘Certificate Provider’ will sign to certify that you are capable of making the choice. Often, this will be the lawyer that you are preparing the document with – but it can also be someone you’ve known for two years or someone with relevant professional skills such as a social worker or doctor.
Note that should you lose mental capacity in the future, your Attorneys must still try to include you in as many decisions as possible. You may retain capacity to make some decisions but not others. Their job is to facilitate you as far as is possible.
If you don’t make a Lasting Power of Attorney and a Deputyship Order is required, there are a lot of forms which must be submitted in a very specific order. These include an Assessment of Capacity form (COP3) to be completed by a suitable medical practitioner who will certify that you have lost mental capacity. The practitioner can be your GP, psychiatrist or approved mental health professional, social worker, psychologist, nurse, or occupational therapist. The whole process is lengthy and complex.
“Who should I choose to be my attorney?”
In many cases couples choose their partners to be their Attorney.
Anyone aged 18 or over can be your attorney including your partner, your grown-up children, other family members, close friends or a lawyer.
The application forms have space for four attorneys but you can in fact have as many as you choose. However, consider that the more people you have, the more difficult it will be for them to reach an agreement!
You can decide whether your attorneys will be have to make decisions together, or whether they can make decisions individually. Assuming you are choosing people you trust, allowing them to making decisions on their own should not be a problem. If they have to make every decision collectively, this can cause considerable difficulties – especially if you have an even number of attorneys who simply cannot agree!
It’s also wise to name replacement attorneys in case your choice of attorneys are unable to act. If you appoint two or more attorneys and specify that they must make decisions jointly, then fail to nominate a replacement attorney, the Lasting Power of Attorney will no longer be valid if one of them becomes unable or unwilling to act.
This is a good example of why it is important to use an experienced lawyer to prepare your Lasting Power of Attorney. There are many potential pitfalls that are not obvious from simply reading the form and although they do not always prevent the document from being registered, they can render the document invalid in the future.