Lasting Powers of Attorney – Information for Carers
There may come a time when you are no longer able to manage your own affairs. By preparing a Lasting Power of Attorney now, you keep control over who deals with your matters in the future.
The person you care for may also want to set up a Lasting Power of Attorney so that it is easier for you to make decisions for them if they can’t do this for themselves in the future.
A Lasting Power of Attorney (LPA) is a legal document where you can give another person the authority to make certain decisions on your behalf.
The person making the LPA is called the donor and the person being given the authority is the attorney.
LPAs were introduced on 1 October 2007 by the Mental Capacity Act 2005. They replace the old Enduring Powers of Attorney (EPA), although these can still be registered and used. However, EPAs only allow your attorneys to make decisions about your property and finances. If you want decisions about your health and welfare to be made for you then you will need to prepare a Health and Welfare LPA.
Do you need a Power of Attorney?
One way of looking at it is “if the person I care for loses their ability to manage their own affairs, could I manage their affairs for them without anything extra in place?” So if the only thing needing to be managed is a joint bank account which you can access on your own then you may feel that a Power of Attorney would not add anything useful. On the other hand, if the person you care for has various accounts or shares or other assets in their name alone and you might need to access them to pay for care costs or home maintenance, or if you may need to sell property belonging to them, then you should be thinking of a Lasting Power of Attorney (Property and Financial Affairs) to make it possible for you to use these assets in the future.
There is a second type of Lasting Power of Attorney which is concerned with welfare decisions such as where someone should live and be cared for and decisions about medical treatment. You may want to consider a Lasting Power of Attorney (Health and Welfare) if you anticipate any potential conflict in decisions about care or the person has strongly held views about certain medical interventions.
The Donor must have “mental capacity” at the time they make the Power of Attorney. This means that they understand what they are doing and can make a decision about who should be their Attorney. A Lasting Power of Attorney lasts even if the person later loses mental capacity. Mental capacity is confirmed at the time the Power is made, by someone who knows the Donor and who agrees to be the “certificate provider” to confirm that they understand what they are doing. If the person does not have the ability to understand and make a decision about a Power of Attorney then they cannot make one.
What is mental capacity?
Every day we make decisions about our lives. The ability to make these decisions is called mental capacity. People may not be able to make decisions some or all of the time, perhaps because they have a learning disability, dementia, mental health problem, brain injury or have had a stroke.
Who decides if someone has capacity?
The Mental Capacity Act 2005 says a person is unable to make a decision if they can’t do one of the following: understand information relevant to a decision; retain that information long enough to make the decision; use or weigh that information; or communicate the decision.
If you do not have mental capacity you may need a court-appointed deputy instead – A deputy is someone appointed by the Court of Protection to make decisions for someone who is unable to do so on their own.
So, if you have decided that a Lasting Powers of Attorney is necessary, and the Donor has mental capacity and is willing to make one, how do you go about it?
You can go to a solicitor who will draw up the documents, supervise the signing and certification and then pay the fee and register it with the Office of the Public Guardian. They will charge for this service. If you need advice about inheritance, wills, trusts, tax planning and other property matters in conjunction with a Power of Attorney, then it is probably wise to use professionals.
Also you may feel you want the reassurance that things have been done properly and to have the benefit of the professional’s insurance policy if things go wrong.
You can use Will Writing services (backed by the Society of Will Writers) who are trained to deal with Wills, Estate Planning, Powers of Attorney etc. Again there will be a charge and they will be covered by professional indemnity insurance. (Put “Will Writing” and your area into Google or look them up in the Yellow Pages).
If you feel confident about doing it yourself then you can buy a Power of Attorney Pack from stationers, order them free from the Office of the Public Guardian (0300 456 0300) or download the forms and guidance from the Justice Department website at https://www.gov.uk/government/publications/make-a-lasting-power-of-attorney . You then register the forms with the Office of the Public Guardian and pay the fee (which is reduced for those on a low income).
Once Lasting Powers of Attorney are registered, banks and other bodies should allow the Attorney to act in place of the Donor. We never know what is round the corner and it is wise to name more than one Attorney in case the first one is no longer able to act for some reason.
The British Bankers’ Association (BBA) has put in place a framework so that banks and building societies have a consistent approach to help Carers manage someone’s finances, along with a leaflet ‘Guidance for people wanting to manage a bank account for someone else’. Most of their leaflets can be obtained by members of the public by simply going into bank (and building society) branches and asking for them or visiting the website and printing off copies themselves at bba.org.uk
What to do next
The action to take depends on the situation. If the person still has capacity and would like to make arrangements in case they lose mental capacity, this is the best time to act so they can set up a Lasting Power of Attorney. It takes up to 10 weeks to register and will only be used if and when they lose capacity, unless they specify otherwise on the application.
If they’ve lost capacity
If a spouse, relative or friend already has limited mental capacity, but didn’t set up Power of Attorney in advance, it gets more difficult. You need to become a deputy of the Court of Protection to make decisions on their behalf. Go to www.gov.uk for the forms you need to complete.