As we grow old it can be more difficult to manage the day to day decisions we all have to make.
Sadly, we can also have mental health difficulties such as dementia or we can unexpectedly lose mental capacity, heaven forbid if, for example, we end up in a coma, whether for a short period of time or otherwise.
The common thread of these types of events is that we lose the mental capacity to manage our own affairs.
There is an option for us to consider to assist us and those we love and care for if we do lose mental capacity and it is called a Lasting Power of Attorney ("LPA")
There are two types of lasting power of attorney available and they are:
health and welfare; and
property and financial affairs
Although there are two types of LPA, you do not need to choose just one, you can decide to implement either or both.
In all cases, however, the LPA's must be registered before you lack mental capacity. They cannot be prepared after the event. See our later article on Deputyship in the case where someone loses mental capacity and without a registered LPA
Health and Welfare Power v Advance Directive
The health and welfare power should not be confused with an advance directive or “living will”. The advance directive is a document that allows you to make specific advance decisions in specific circumstances when you lack capacity for example when you are unconscious or cannot speak following an accident. The Health and Welfare Power of Attorney is far more generic.
There are numerous other differences between the two, some of them being quite subtle.
Health and Welfare LPA
A Health and Welfare LPA gives one or more trusted persons the legal power to make decisions about your health and welfare if you lose mental capacity. The person who grants power is known as the ‘Donor’ and the person appointed to make decisions is the ‘Attorney’.
Your attorney can make decisions about anything to do with your health and welfare such as:
Refusing medical treatment;
where you are cared for and the type of care you receive;
day-to-day things like your diet, dress and daily routine.
The Health and Welfare LPA can only take effect once mental capacity is lost.
In order to give a health and welfare LPA to someone (the "attorney"), you should consider whom you want to appoint. You need to trust that your attorney will act in your best health interests; someone who you know will manage your health decisions when you are unable to perhaps communicate them, or communicate them effectively.
The Health and Welfare LPA, like the Property and Financial Affairs LPA is registered with the Office of the Public Guardian and subject to stringent administrative requirements before it is valid.
Property and Financial Affairs Power
A property and financial affairs power allows you to share the responsibility of your financial affairs with someone you trust. This will be particularly beneficial if you are struggling with the day to day responsibility of making sure your bills are paid on time, that your benefits are collected or perhaps the process of selling your home if you are downsizing or moving into a residential home or sheltered accommodation.
Unlike the Health and Welfare LPA, the Property and Financial Affairs LPA can take effect immediately after registration or once mental capacity is lost.
In order to give property and financial affairs LPA to someone (the "attorney"), you should consider whom you want to appoint. You need to trust that your attorney will act in your best financial interests.
Once you have made this decision you will need to complete the correct forms and register your Lasting Power of Attorney with the Office of the Public Guardian.
Like the Health and Welfare LPA, the Property and Financial Affairs LPA is also registered with the Office of the Public Guardian and subject to stringent administrative requirements before it is valid.
In both cases, you will also need to be over 18 and have the capacity to make your own decisions at the time of preparing the LPA's.
Arranging one or both Lasting Power of Attorney instructions may help you to feel secure that your wishes in the future will be honoured and that you are protected.
The information provided in this article is not intended to constitute legal advice and you should take full and comprehensive legal advice on your individual circumstances by a fully qualified Solicitor before you embark on any course of action.
Wills & Probate Team
0207 183 2898