Due to society’s ever ageing population, many people will become incapable of managing their own affairs due to physical health or mental capacity issues.

Statistics show that 850,000 people are estimated to be living with dementia in the UK, with that figure rising to 1 million people by 2025 and 2 million people by 2050.[1] People suffering with dementia or Alzheimer’s lose mental capacity and this can result in not being able to pay your own bills or manage your own bank accounts. Also physical related conditions can make managing your own affairs difficult. However, there is a solution which can alleviate these concerns to enable someone you trust to manage your affairs for you if you become incapable.

What are Lasting Powers of Attorney?

Lasting Powers of Attorney are legal documents that allow the individual making it to give someone the power to act on their behalf. There are two types of Lasting Powers of Attorney, one for Property and Financial decisions and one for Health and Welfare decisions. When making a Lasting Power of Attorney the person making the document is the donor and the individual or individuals they chose to act on their behalf are attorneys. Often people will chose someone they trust to be their attorney such as a spouse, children, close family members or their solicitors.

How they work in practice?

In relation to a Lasting Power of Attorney for Property and Finance, the donor can carry on making financial decisions as usual until they either decide they want assistance from their attorneys or they lose mental capacity. This document then allows an attorney to deal with the donors bank accounts, bills, tax affairs and it can allow them to buy or sell property on their behalf.

However, a Lasting Power of Attorney for Health and Welfare can only be used by an attorney once the donor has lost mental capacity. This document concerns decisions relating to medical care and can involve accepting or refusing life-sustaining treatment on the donors behalf.

In relation to both Lasting Powers of Attorney, the attorneys are responsible for making decisions in the donor’s best interests and they can only make decisions that are authorised by the terms of the document.

For a Lasting Power of Attorney to be used it must have been registered with the Office of the Public Guardian. This is something we assist you with at Lupton Fawcett. Usually, once the Lasting Power of Attorney has been signed and executed by the donor, we will send the application off to the Office of the Public Guardian with the relevant registration fee. We then receive your registered documents back and provide certified copies for you or your attorneys to use when necessary.

When to put a Lasting Power of Attorney in place

The ideal time to put a Lasting Power of Attorney in place is when you are making a Will, as you will have the necessary mental capacity to make both documents at this point. It is also useful to instruct the same solicitor to draft your Will and Lasting Powers of Attorney to ensure continuity for your legal documents. It is relatively common for individuals to choose the same people to be their executors in a Will and their attorneys in a Lasting Power of Attorney, due to the fact that they are people who you would trust to manage your affairs and subsequently your estate. Although, it is completely the decision of the individual making the document as to who they chose as their executor’s and attorneys.

However, if you have a Will in place but you don’t have a Lasting Power of Attorney and you have concerns about how your affairs would be dealt with if you became incapable of managing them yourself, it is necessary to put this legal document in place whilst you still have the mental capacity to do so.

Alternatively, it may be that you are concerned about a family member who is beginning to struggle to manage their own affairs due to physical health problems or perhaps they are starting to show early signs of confusion. In this situation it may be useful to approach this person and suggest that they instruct a solicitor to make a Lasting Power of Attorney so that they can get some assistance with their affairs. This can only be done if the individual still has the mental capacity to understand the nature and effect of a Lasting Power of Attorney.

Consequences of not having a Lasting Power of Attorney

If you have not made a Lasting Power of Attorney and you lose mental capacity and become incapable of managing your own affairs this can have serious consequences for you and your family. It can result in not being able to access your bank accounts and losing the ability to sell any property to fund care home fees. In this situation, it would become necessary for an application to be made to the Court of Protection to appoint a deputy to make decisions on your behalf. However, this process is costly and time consuming and it can take months before someone is able to access your finances. The best way to avoid this situation is to make a Lasting Power of Attorney.

If you are wanting to put a Lasting Power of Attorney in place for Property and Finance or Health and Welfare, to protect your affairs in the future, you can seek legal advice from our experienced senior associates in the Private Client department. Also, if you do find yourself in a situation where you need to seek a deputyship application for a family member, this is something we can assist you with.

[1] https://www.dementiastatistics.org/statistics-about-dementia/prevalence/

For further help or advice in relation to this article, please contact Megan King

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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