Losing Capacity Doesn’t Have to Mean Losing ControlPublished on: 29 March 2021
Around 40% of people have a Will, even fewer have a Lasting Power of Attorney (“LPA”). A lot more people consider what will happen after they pass away but very few consider what will happen should they or a loved one lose capacity, or otherwise require assistance. Unfortunately, sometimes it takes a high profile story to remind us of the potential gaps in our own planning. Recently, many of us will have seen the devastating story of Good Morning Britain host, Kate Garraway.
Kate found herself in the unfortunate position where her husband, Derek Draper, fell ill with coronavirus. On top of the stresses involved with having a family member fall seriously ill, Kate has had to deal with the complicated legal obstacles in place that prevent her from managing her husband’s care or finances.
What is an LPA?
An LPA is the successor to what many will know as an Enduring Power of Attorney (“EPA”) and replaced it in October 2007.
As with its predecessor, it is a legal document that allows you to appoint one or more individuals, who unsurprisingly become known as your attorneys. These people can then assist you in making decisions or, if necessary, they can make decisions on your behalf.
With a carefully drafted LPA, losing capacity doesn’t mean losing control, you can give your attorneys the power to deal with all your affairs or you can limit their powers. You can define the attorneys’ authority.
A key difference between an EPA and an LPA, is that there are two main types of LPA:
property and financial affairs; and
health and welfare.
Property and Financial Affairs LPA
A property and financial affairs LPA gives your attorneys the power to make decisions about your finances, this can include:
buying or selling property;
collecting benefits or a pension; and
managing bank accounts.
As mentioned previously, you can give your attorneys the power to deal with some of your financial affairs, or only certain things. So, for example, this could be all of the things listed above or just two or three of them.
In Kate’s situation, this LPA could have assisted her in managing her mortgage or any accounts in Derek’s sole name.
It’s important to seek advice and to have your LPA worded very carefully to ensure that you give your attorneys the powers you want them to have and it is clear to them what authority they have to deal with your affairs.
This LPA can be used as soon as it is registered, and, if you elect for it to do so, before you lose capacity, with your permission of course. This means your attorneys can assist you with your financial affairs even when you are still capable. You might not think that this would appeal to you, and it is a personal choice to make, however, many people would have found this quite useful during the coronavirus pandemic where they have needed to shield or isolate.
Health and Welfare LPA
A health and welfare LPA offers something its predecessor doesn’t, it can allow your attorneys to make decisions on things like:
where you live;
your daily routine, including what you wear and what you eat;
medical care; and
moving into a care home.
As with the property and financial affairs LPA, you can make a health and welfare LPA which deals with all aspects of your personal welfare or just certain things.
For Kate, this would have given her legal authority to make decisions and manage Derek’s care.
Again, it’s important to seek advice and to have your LPA worded very carefully. There is also some overlap with what is called a Living Will and you should consider how one may have an effect on the other. It is therefore important to consult a specialist to ensure that your wishes are enacted as you intended.
This LPA can be used as soon as it is registered, but it is not possible to use it until you have lost capacity.
Do I really need one?
There are common misconceptions with what you can do in the absence of a power of attorney, many people believe that their next of kin will always get the final say when they are unable to make decisions for themselves, or that a couple with a joint bank account or a home in joint names can act for the other.
However, whether or not you will actually ever need an LPA is a very difficult question to answer and no one can say for sure. What we do know is that the unexpected can happen and I like to think of an LPA as an insurance policy, you never take insurance out planning to use it but you’re happy you have it when you do need it.
There are many reasons we might lose capacity over our lifetime, one in three of us will develop dementia and every ninety seconds in the UK someone is admitted to hospital with an acquired brain injury.
Having an LPA has the benefit of not only allowing you to choose the person in charge of making decisions for you, it makes it easier for your loved ones. Without one, your loved ones may need to apply to the Court of Protection and a deputy may need to be appointed. This can be a long and onerous process in a time of uncertainty.
What Can Lanyon Bowdler Do to Help?
With nearly twenty-two thousand applications for LPAs in 2019/20 being rejected by the Office of the Public Guardian, it can be important to consider legal advice when drafting the necessary documentation.
Our private client team has decades of combined experience in helping clients deal with their affairs.
We can assist in preparing your LPA or any side letters you may wish to accompany your documentation.