Lasting Powers of Attorney came into effect in 2007.
There are two different types:
● Health and Welfare
The former Enduring Power of Attorney was easy to administer but focussed mainly on finances and property rather than personal welfare and health. The new Lasting Powers of Attorney resolved that weakness and separated out finances and health.
Both are important and both work together to safeguard people when they need help and support to manage their life because they are no longer able to. That might be towards the end of life, or for a temporary period.
The law describes them as a mechanism that has been designed to meet the needs of people who can see a time when they may lack the capacity to look after their own financial and personal affairs.
We will cover financial matters later this year so watch out for more detail on lasting powers of attorney covering finance, but for now we will be examining how people can safeguard their wellbeing when they need it.
At a time of life when people are vulnerable and need support to manage their health, a Lasting Power of Attorney ensures that they can call upon trusted people to take care of the difficult decisions that they may not have the capacity to take, whether that’s critical illness, accident, or the ever increasing incidence of dementia in our aging population.
But how do you choose the right people now?
You can select anyone you like. They may be family members, or friends that you trust to make decisions for you. You may also choose a professional to act on your behalf as well who may be one of a number of chosen individuals or singular. This can be particularly useful if you want to appoint a third person to prevent any disagreement, or you would prefer not to call upon people that you are close to.
Do I really need to do this?
It is advisable to do so. When you are at greatest need you will have the support of trusted people to look after your welfare. It becomes more difficult and costly for family to make decisions on your behalf if it isn’t in place. And the law prevents someone from creating a Lasting Power of Attorney if they are deemed not to have the capacity to do so.
A good example of why having a Lasting Power of Attorney in place is the case of Betty Figg. Social Services has recommended placing her in a care home but her daughter removed her due to weight loss and a fall from her bed. Social Services took Mrs. Figg back with the help of the Police and a seven month battle ensued to bring her home.
With an LPA in place, social services would have been prevented from making decisions about her care.
To read more about this case visit https://www.coventrytelegraph.net/news/coventry-news/coventry-woman-wins-seven -month-battle-3081861
How do I do it?
There are a number of forms and documents that need to be completed and submitted to the Office of the Public Guardian which exists to protect people who have lost mental capacity.
The process involves three people. The person who the LPA is for, the attorney (in this context the person who is legally appointed to act on behalf of the person to whom the LPA applies) and another person known as the certificate provider who witnesses that the decision has been made with the understanding and agreement of the person who the LPA applies to.
There is no guidance from the OPG on how to complete the application forms even though they need to be completed and signed in a particular order. So it’s best to get advice on how to complete them so that they aren’t returned. There is more information from the Office of the Public Guardian here https://www.gov.uk/government/organisations/office-of-the-public-guardian
How is this governed?
There is a five-point test to ensure that people have the mental capacity to create an LPA, and this is the responsibility of the Certificate Provider to assess. The test has been created by the MentalCapacity Act 2005 that creates the LPA process, and this also includes a Code
Of Practice. Should there be suspicions that an attorney may not be acting in the best interests of the person holding the LPA the Office for Public Guardianship can arrange an investigation, and this in turn can be referred to the Court of Protection which was set up for this purpose. So there are checks and balances in place to govern the process and behavior to ensure people are protected when they are in need of support.
How can Will Protect help?
Here at Will Protect we work alongside our clients to ensure that their wishes are well represented and protected. That means that we will listen to what you wish to include in your will and how you would like to share your assets amongst your most loved and valued family and friends.
Not only that but we will help you navigate the complex paperwork and requirements to create a Lasting Power of Attorney to protect your health and welfare and finances in the event that you lose the mental capacity to look after those aspects of your life yourself.
We understand that these are difficult and sensitive matters, and we will support you with a sympathetic, understanding but professional hand so that your wishes are recorded accurately and effectively and ultimately your best interests are always protected.