It seems that before we die quite a few of us become unable to manage our own affairs
perhaps following a bad stroke or because of Alzheimer’s disease or senile dementia.
For close relatives problems can arise in trying to deal with assets in the person’s sole name or in dealing with Healthcare Professionals on their behalf. Unless the person (the Donor) has made provision for this while he is still legally able to make the decision, costly applications to the Court of Protection are needed and ongoing Court monitoring charges are levied.
To simplify matters we should all consider giving authority to one or more persons that we trust to make decisions for us once we lack legal capacity. We must however give this authority while we are still capable of making the decision.
The authority is given by a Lasting Power of Attorney. There are two types. You may choose to do one or both.
Choice of Attorney
The person making the LPA (the Donor) should appoint an Attorney they trust and in whom they have complete confidence. The Attorney must be over 18 and must not be an un-discharged or interim bankrupt person. More than one Attorney can be appointed and if so the Donor can decide if they are to act together, independently or together in respect of some matters and independently in respect of others. It is also possible for the person making the LPA to appoint a replacement Attorney or replacement Attorneys. This is particularly useful if an original attorney becomes permanently unable to act perhaps by death or losing legal capacity.
Role of Attorney (Property and Affairs)
An Attorney’s role is to act in the best interests of the Donor and to make all the decisions (subject to any restrictions or conditions contained in the LPA) that the Donor would have made himself if the Donor is unable to make them himself. In reaching these decisions the Attorney must comply with The Mental Capacity Act 2005 and a Code of Practice.
Under a Property and Affairs LPA the Attorney will normally be able to pay bills and expenses, collect income and benefits, manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the statutory limits. The scope of the power (unless limited by the donor) is very wide and the attorney can empty your Bank Account and sell your house. You should therefore be very careful who you appoint.
Always remember that unless the Donor restricts the LPA to being used only if the Donor lacks legal capacity then it can be used at any time after it has been registered with the Office of the Public Guardian (OPG).
Role of Attorney (Health and Welfare)
Once again the role of the Attorney is to act in the best interests of the Donor. Once again the power has to be registered with the OPG.
The big difference here is that the Attorney can only exercise this power if the Donor lacks capacity to make the decision in question. You can have capacity to make some decisions but not others.
Under a Welfare LPA the Attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment. The Donor has to state whether the Attorney can give or refuse consent to life sustaining treatment on behalf of the Donor. The Attorney may also be able to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or daily routine.
LPA’s can be restricted or contain conditions limiting the Attorney’s authority and can include guidance for the Attorney, which could be invaluable to the Attorney.
What to do next?
A decision to give someone authority to manage your financial affairs is not one that should be entered into lightly.
If you wish to ensure that your family does not encounter difficulties in dealing with your affairs do not hesitate to contact Paul Finn or Philip Dart on 01288 356256 or send an email to firstname.lastname@example.org. Both Paul and Philip are both Solicitors of more than 25 years experience and are Registered Trusts and Estate Practitioners and will sensitively help you to make the necessary decisions and will prepare the documents.
Director, Paul Finn Solicitors
Tel: 01288 356 256