If not now, when?

I did a Lasting Powers of Attorney talk recently for one of the charities I support, Carers in Hertfordshire, who support unpaid carers. Specifically, I was talking about whether the Donor wanted to a give the Attorney the authority to make life sustaining decisions on the Donor’s behalf, if the Donor was incapacitated.

A gentleman spoke out and said how saddened he was that his mother had a Health and Welfare LPA, and in that, she indicated that she did not want to be resuscitated under any circumstances. His mother had collapsed at home and an ambulance was called. The paramedics went to resuscitate the mother and the son advised them that his mother would not want that and she had a registered Lasting Power of Attorney indicating this. The paramedics said that unless he could produce the LPA showing that his mother did not want to be resuscitated, they were under a duty of care to resuscitate and try to revive the patient. The son was telling me how heartbroken he was watching his mother be resuscitated when she had prepared a legal document indicating she did not want this.

If you do have a registered Lasting Power of Attorney, ensure your Attorneys have certified copies of them so they can act if you have lost capacity.

Do not leave it too late

Most people often leave it too late to prepare and register Lasting Powers of Attorney, meaning loved ones are left with the burden of having to make an application to the Court of Protection to become that person’s Deputy. This is a more costly and lengthy exercise.

A Lasting Power of Attorney is a legal document that lets you appoint one or more people (Attorney) to help you make decisions on your behalf. This gives you more control over what happens to you if you have an accident or an illness and can’t make your own decisions. You must be 18 or over and have mental capacity when you make your LPA.

Health and Welfare

This Lasting Power of Attorney allows the Attorney to make decisions with regards to;
• your daily routine, for example washing, dressing, eating
• medical care
• moving into a care home
• life-sustaining treatment

It can only be used when you’re unable to make your own decisions.

Property and Financial

This Lasting Power of Attorney allows your Attorney to make decisions about money and property for you, for example:
• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling your home

It can be used as soon as it’s registered, unless you indicate otherwise.

You can choose one or more people to be your Attorney. If you appoint more than one, you must decide whether they’ll make decisions separately or together. They are over 18 and have mental capacity. The Attorney doesn’t even need to live in the UK, though you may find it more practical if they do.

Things to consider when choosing your Attorney(s);
• how well they look after their own affairs, for example their finances
• how well you know them
• if you trust them to make decisions in your best interests
• how happy they will be to make decisions for you

Your Attorney must:
• follow any instructions you set out in the Lasting Power of Attorney
• consider any preferences set out in the Lasting Power of Attorney
• help you make your own decisions as much as you can
• act in your best interests at all times
• respect your human and civil rights

You can decide whether you want your Attorneys to act ‘jointly’ – this means all the attorneys must agree, or ‘jointly and severally’ – this means you can make decisions together or on your own

You can advise that the Attorneys work jointly on some decisions, but jointly and severally on others.

Property and financial affairs attorneys

Your Attorney will be able to make decisions with regards to the following, on your behalf;
• money, tax and bills
• bank and building society accounts
• property and investments
• pensions and benefits

You may appoint different attorneys in each type of Lasting Power of Attorney, though they may need to work together. For example, if they sell your house because you require care. The financial Attorney will have the authority to sell your house, but will need to liaise with the health and welfare Attorney in deciding which care home is best for you to reside in.

Your Attorney will be able to handle your money in the following examples:
• gifts to your friends, family member or acquaintance on occasions when you would normally give gifts (such as birthdays or anniversaries)
• donations to a charity that you wouldn’t object to, for example a charity you have donated to before

Your Attorney must apply to the Court of Protection for any other type of gift or donation, even if the donor has given them before, such as;
• paying someone’s school or university fees
• letting someone live in your property without paying market rent (anything they pay below market rent counts as a gift)
• interest-free loans

The Attorney must check that you can afford the gift or donation, even if they’ve spent money on these types of things before. For example, the Attorney can’t donate your money if that would mean they couldn’t afford your care costs.

 

Gemma Young is the Wills and Probate Resident Expert at The Outsourcing Way.

You can find her on Facebook and LinkedIn.

If you have any questions for our expert Gemma, ask her on The Outsourcing Way Crisis Clinic.