Just as you are never too old to go skydiving, pursue your dreams, join TikTok, listen to Stormzy ,run a Marathon or join the gym, you are equally never too young to take up knitting, join a Crown Green Bowling Club, enjoy the music of Frank Sinatra, struggle with technology or find Laurel and Hardy absolutely hilarious.
All of the above seem to be lodged as age specific stereotypes within our psyche and can express themselves as a form of unconscious bias. Thankfully the world is becoming less ageist and more inclusive for all of us in all directions.
Another age specific stereotype that needs addressing appears to be Wills and Lasting Powers of Attorneys. Most of us know what a Will is and we will cover this in another blog. But just as a Will helps us ensure that we look after our loved ones when we die, Lasting Power of Attorneys ensure that we are being looked after and our wishes are being honoured by someone we love and trust should we ever not be able to make those decisions for ourselves. If you are aware of health conditions which may take great effect on you in later life, or are aware of a hereditary condition in the family, it is important to make an LPA. Losing mental capacity isn’t exclusive to the over 60’s, it can happen to any of us at any stage of our lives. Below is a guide to Lasting Powers of Attorney. If you need more information, please email us at info@legaltips.co.uk.
What is a power of attorney?
If someone becomes seriously unwell or suffers from a life changing accident, they are likely to find it more difficult to manage their money and financial affairs, and may become too unwell to make decisions about their health and care. If this is a worry, they can register to give someone power of attorney to make decisions and take care of things on their behalf.
In England and Wales there are two types of lasting power of attorney. It is possible to set just one or both up.
- A property and financial affairs lasting power of attorney lets someone manage all financial affairs – for example, running bank and savings accounts, paying bills and collecting benefits or a pension. It can be used as soon as it’s registered, with permission.
- A health and welfare lasting power of attorney lets someone make decisions about health, care and welfare – for example, daily routine (e.g. washing, dressing, eating), medical care, and life-sustaining treatment. It can only be used when someone is unable to make their own decisions.
The person or people who will manage any finances or make decisions about care are called ‘attorneys’, and they’re usually friends or family members.
Do I need to set up a power of attorney?
To know that someone you trust will be making decisions on your behalf can be very reassuring. This is particularly the case for people with illnesses such as dementia, which will increasingly affect their ability to understand things and make their own decisions.
Even if you do not have an illness that will affect your thinking and reasoning, speech and communication may well be affected as your illness progresses, making it tiring and more difficult to have detailed discussions about what is wanted.
When should a Lasting Power of Attorney be set up?
It is better to set these up sooner rather than later.. This is because it can only be set up when someone has the mental capacity to make their own decisions. ‘Mental capacity’ means that you are able to understand information and make and communicate your decision. At the time of writing (June 2022) the current waiting time from registering to approval is approximately three months.
At the point when someone needs to receive end of life care, they are likely to be too unwell to set up a power of attorney.
It is important to state that setting up a power of attorney doesn’t mean anyone has to give up control. It can only come into force when capacity to make informed decisions is lost. For those who lack capacity and for whom there is no welfare attorney appointed, the doctors have a duty to act in the individual’s best interests, taking into account the wishes as they may have been expressed to relatives or friends.
If a loved one has already lost capacity and does not have a lasting power of attorney in place for any financial affairs, it’s a more complex procedure to get support if there is no-one with authority to act on their behalf.
What will happen if I don’t register a Power of Attorney and I have lost mental capacity?
It is possible to get someone appointed to manage your finances, but it requires an application to the Court of Protection. The Court would appoint someone as a property and financial affairs deputy.
A deputy has much the same powers as an attorney and a typical deputyship order from the Court of Protection will provide a relative with sufficient authority to look after the person’s financial affairs, such as being able to access their bank accounts, liaise with utility companies and deal with any property.
However, this can be a lengthy, stressful and costly process for the family. It may also be something that they have to deal with during an awful time, for example, if you have been in an accident or suffered a stroke, when they would rather be spending time with you.
The application process can take between three and six months.
There is a £400 application fee and annual costs. A deputy also has to produce an annual report of the income and expenditure.
In contrast to an LPA, with a deputyship, the court ultimately decides who should manage the person’s affairs.
What needs to be done to set up lasting power of attorney?
You can set up a Lasting Power of Attorney by yourself using the government website . There is a fee of £82 for each form submitted which goes to the Office of Public Guardian (exemptions and reductions can apply). The Office of Public Guardian are stringent in the chronology of signatures and will send back any forms signed in the wrong order or otherwise incorrectly completed.
Alternatively you could use a Solicitor or Estate Planner here at Legal Tips to support you with your forms, organise and register on your behalf.
We also work on Lasting Powers of Attorneys and Wills as a package at a discounted rate. This could be for one person or a couple.