Why Is It Beneficial to Arrange a Lasting Power of Attorney?

 Most people hope to live out their life healthy and independent. Unfortunately often an accident or mental or physical illness can lead to us being unable to make decisions for ourselves about health, welfare or finances. This can happen at any age not just to the elderly.

Mental Capacity 

Mental Capacity means being able to make and communicate decisions about your welfare, where you live, medical treatment, and finances. Mental Capacity can be lost through suffering a stroke, having an accident, mental illness or dementia.

The Mental Capacity Act 2005 - MCA

The MCA provides a legal framework to help empower individuals to make their own decisions. There are Guiding Principles to apply when assessing capacity and when making decisions on someone’s behalf.

     1. A Presumption of Capacity

         A person must be assumed to have capacity unless it can be established that he lacks capacity.

     2. The Right to be Supported to make a Decision

            A person must not ne treated as unable to make a decision unless all practicable steps to assist him have been taken without success.

     3. The right to make Unwise Decisions

            A person is not to be treated as unable to make a decision  merely because he makes an unwise decision.

     4. Best Interest

            An act done or decision made under this act for or on behalf of a person who lacks capacity must be done or made in his best interests.

     5. Least Restrictive Intervention

         Before the act is done or decision made regard must be given to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the persons rights and freedom of action.   

When a person loses the mental capacity to make decisions it may be necessary for other people to make those decisions on their behalf. This is called Power of Attorney.

Power of Attorney  

Someone who grants a Power of Attorney is called a Donor. To be a Donor you must have mental capacity and you can only to grant the power of attorney to undertake actions that you have the right and capacity to do yourself.

If you instruct a Solicitor to draft the Power of Attorney he/she can only accept authorisation from you in person or in writing - not from the person who is to become your Attorney.  If you are appointed an Attorney you are in a position of trust and must always act in the best interest of the donor- see guiding principles.

Ordinary Power of Attorney - OPA

An OPA gives another individual chosen by you the obligation of taking care of your financial affairs on your behalf. You can choose whether to grant limited or wide ranging powers to your attorney. There is a standard form of words to use for an OPA and this is best compiled by an experienced Solicitor.

Choosing Grahame Stowe Bateson for advice when granting your Power of Attorney will give you confidence that your wishes will be formulated in compliance with the law. The important thing to consider when choosing an OPA is that it will cease to be legal should you loose the capacity to make decisions about your finances.

Lasting Power of Attorney - LPA

    The legal power to act on behalf of someone who is mentally or physically incapacitated is called Lasting Power of Attorney. There are two types of LPA:

     Property and Affairs LPA

    This allows the Attorney the power to manage your financial affairs and investments and pay your bills and expenses. They may also make decisions about any property you own.

     Personal Welfare LPA

    This allows the Attorney power over your accommodation, healthcare (including medication and treatment) and consent to medical treatment on your behalf. (unless you are detained under the Mental Health Act - please see the information on our website about this)

How to arrange an LPA

It is advisable to have both kinds of LPA to ensure your affairs are fully covered. It is not always the case that family members will have authority to act on your behalf-unless you have made provision for this by setting up your LPA. Choose your attorneys carefully. Parents often choose their children- but you may also choose a close friend or other family member.

Grahame Stowe Bateson can advise you and formulate your LPA in compliance with the law. This includes ensuring that

  • - The completed LPA is in a legal format with your appointed attorneys named
  • - Your specified restrictions/conditions are legally binding
  • - Your specified restrictions/conditions and not enforced until you specify the LPA will come into effect
  • - Separate documents are completed for each LPA
  • - The LPA is independently validated as the law requires.
  • - Your attorneys register it with the office of the Public Guardian when required

Without appointing attorneys via a LPA then unless you have a joint bank account that someone has access to then the only person able to deal with your property and affairs is you. The financial institutions in complying with money laundering and data protection legislation have ensured that no information or dealings are allowed by third parties making life very difficult for the next of kin. This means that the carer of last resort, social services, would step in and deal with your affairs excluding your family and friends from the decision making process.

Should you not have appointed an attorney through a LPA and you lose capacity then anyone wishing to deal with your financial or personal welfare affairs will have to apply to the Court of Protection to be appointed deputy for them. A deputy application is very exhaustive and requires a lot of information to be provided to the Court as well as a report preparing by a doctor. You need to serve notice on the patient on two occasions within a 21 day timeline completing forms to be given to the patient, respondents and to the court and finally you cannot act for the patient until such time as an insurance bond is in place.

Currently they estimate there are over one million people in this country who have not appointed an attorney and who do not have the mental capacity to deal with their affairs.

 

 

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