Who will make decisions for you if you lose mental capacity?

Decisions - lose mental capacity

It is not just old age that leads to a loss of mental capacity – illness, brain injury, a stroke or dementia could affect any of us at any time. According to the Alzheimer’s Society, around 42,000 younger people have dementia in the UK – more than 5% of all those with dementia.

“I would never want to go into a care home!”

If you did lose mental capacity, who would you trust to make decisions for you as to your personal care, welfare and finances? You might be surprised to hear that the person who actually makes those decisions might not be the person you would have chosen.

If you don’t have a Lasting Power of Attorney, anyone relatively close to you – a friend or family member – could apply to the Court of Protection for the right to make decisions on your behalf.

The problems of having no Lasting Power of Attorney

Without a Lasting Power of Attorney, your partner has no automatic right to manage your finances on your behalf. In some cases, the bank will freeze a joint account and will not allow access to funds – even if these are needed to pay for care. Your partner or someone close to you must then apply to the Court of Protection for a Deputyship Order to be able to act on your behalf. This might not be the person you would have chosen yourself.

There are two types of Deputyship Order – one for personal welfare and one for finances. The cost of applying for the relevant orders is high, and the process is long-winded and often intrusive. In the meantime, nobody will be able to manage your finances, pay bills or access funds for items that you need. Once the orders are obtained, there are ongoing fees that must be paid to the Court of Protection every year.

Whoever is caring for you can make certain day-to-day decisions regarding your care, without a Deputyship Order. These decisions must always be in your best interests. However, the person making the decisions might not have been who you would have chosen, and they may not know your preferences. For example, many of us would prefer to receive care in our own home, rather than in residential care home. Other decisions need to be referred to the Court of Protection for guidance.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney allows you to nominate in advance someone you trust to make decisions for you, should you lose mental capacity. There are two types of Lasting Power of Attorney – one for health and welfare decisions, and one for property and finances decisions. You can nominate one or more different people for each type, if you want to. Once you sign the documents, they are sent off to be registered with the Office of the Public Guardian.

The property and finances Power of Attorney can be used any time you choose, once registered. This is very useful as it allows you to ask someone to carry out tasks for you – for example, going to the bank if you are on holiday.

The health and welfare Power of Attorney can only be used once registered when you have lost mental capacity.

Thinking about making a Lasting Power of Attorney? We offer free appointments with our team, without any obligation. Call us on 0800 788 0500 or email support@aprilking.co.uk – we have locations across the UK, and we will arrange an appointment at the office that is most convenient to you.

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