Updated: Mar 16, 2020
Without these documents in place, you could be leaving your family with a very costly application to the Court of Protection.
Thinking and talking about what would happen if our faculties deserted us is uncomfortable. Yet it's important to consider how much worse the situation would be if you had a stroke, serious accident or dementia without sorting it first.
If someone has difficulties that mean they can't make decisions anymore, they will need help managing their finances along with their health and welfare. A Lasting Power of Attorney (LPA) is a legal document where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity. The key point to remember...
Don't think you suddenly give up control. You can choose whether it can be used either before, or only when, you lose mental capacity.
Your representative should only ever make a choice for you if you're unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able to make your own decisions again.
It's worth noting LPAs replaced the previous Enduring Power of Attorney (EPA) system. EPAs set up before 1 October 2007 will still be valid, whether or not they have been registered, though they must be registered when the person loses capacity.
The Health and Welfare Lasting Power of Attorney
In a nutshell, the health and welfare document sees a nominated individual make decisions over day-to-day healthcare and medical treatments, as well as deal with any health and social care staff.
Just because you give the trusted person power of attorney over your health, that doesn't mean they will automatically gain control over your financial affairs and vice versa. If you require the same individual to have power of attorney over both aspects of your care, then you will have to fill out the two forms separately.
Another key difference is that the health and welfare LPA can only be used after the person loses capacity, not before.
The heath and welfare LPA is often overlooked or seen as not being as important as its sister documents, the property and finance LPA However, this is not the case!
Imagine a scenario where you have lost capacity and you have also been diagnosed with cancer. (our apologies for being so bleak!) The doctors have recommended a course of chemotherapy but your family know this is something you would not have wanted due to the side effects and lack of quality of life. With a Health and Welfare PA your family can make he decision on your behalf to refuse this treatment, allowing you to die with the dignity you deserve.
On a less bleak note, the Health and Welfare LPA would also allow your family to choose where you are cared for and arrange for carers to visit you at home rather than be moved- if this is what is best for you. If you do not have a health and welfare LPA decisions about your long term accommodation or changing your accommodation will need to involve an independent mental capacity advocate.
Property & Financial Affairs Lasting Power of Attorney
The Property and Finance LPA does what it says on the tin- it allows your loved ones to make decisions about your finances and property.
More specifically, it allows your attorney(s) to step into your shoes and act as if they are you. For example, they can ensure that all of your bills are paid on time, that any investments that you have are properly managed and speak with all of your account holders on your behalf.
"We need to speak with the account holder"- does this sound familar? Now imagine that you are the account holder but you are unable to speak becuase you have had a stroke. Your fixed price energy deal has ended but you can't switch providers becuase you do not have the capacity and supplier will not speak to anyone but you. A frustrating scenario for your family to deal with. However, if you had a property and finance LPA in place then this scenrio would not occur as your attorney would be able to easly act on your behalf with no unnecessary stress.
Another scenario that is often overlooked is what would happen to your property if you needed to move into long term care? Without a property and finance LPA your family has no authority to do anything without your express consent. If you are unable to give that consent then your property could be left empty and fall into disrepair or your family would need to go through the costly and expensive process of obtaining a Deputyship Order through the Court of Protection. However, with a property and finance LPA in place your attorney(s) would be able to deal with your property in accordance with your wishes. For example, they could arrange for the property to be rented out so that you are receiving some income!
What happens if I don’t have a Financial LPA?
If you do not have an LPA in place and later become mentally incapacitated, your relatives or friends may face long delays and expense in applying to the Court of Protection in order to obtain legal authority to make decisions on your behalf regarding property and finances, and/or health and welfare. This is known as a Deputyship Order. As the court application can take several months, no one will be able to access your funds or make decisions on your behalf, which could cause difficulties if you have a mortgage or other financial obligations, which cannot be met until the correct authorities are obtained.
Advantages of an LPA
The advantage of having an LPA is that if an accident should happen and you were left in a position where you were unable to look after yourself financially or in terms of your medical care, you have the peace of mind of knowing that your wishes will be honoured and respected.
It is much easier to already have things in place ‘just in case’ you were to find yourself in a position to need them.
Have any questions? Just contact our specialised advisors for a free hour advisory appointment.