It goes without saying that people are living longer as a consequence of medical advances, but an increasing number of individuals sadly lose the ability to make important decisions in relation to their money and personal welfare.
Yesterday I looked at the difficulties in assessing mental capacity, especially for people whose mental capacity can fluctuate. As stated in yesterday’s article, it should be assumed that an individual has capacity to make their own decisions unless it can be established that they do not. This is usually undertaken by a medical professional who will undertake an assessment of capacity – different assessments may be needed for different decisions if a person’s capacity fluctuates.
Today, I will explore the importance of putting in place Powers of Attorney and what will be required of you if you are appointed to act as an Attorney.
Powers of Attorney
In order to put in place a Power of Attorney, you need to have mental capacity. A Power of Attorney is a legal document that allows you (the “Donor”) to appoint another person or persons (an “Attorney”) to act on your behalf if you are unable to make decisions yourself.
It is important to know that there are different types of Power of Attorney: Enduring Powers of Attorney (“EPAs”) and Lasting Powers of Attorney (“LPAs”).
EPAs were a forerunner to LPAs and were strictly limited to your financial affairs and will not cover health decisions. They enabled the donor to appoint an Attorney to look after their affairs, even if the donor still has mental capacity. If the donor begins to lose or has lost mental capacity, then the EPA is then registered and the Attorney can then continue to act on their behalf.
EPAs can no longer be put in place, however, if you made an EPA prior to 1st October 2007, it will remain valid. It is worth reviewing any EPA you may have entered into in the past to ensure that the Attorneys you appointed are still appropriate, able and willing to act for you if required.
LPAs, on the other hand, were introduced by the Mental Capacity Act 2005 to replace EPAs, largely because EPAs were prone to abuse by unscrupulous Attorneys.
There are two types of LPA:
Property and Financial Affairs LPA
The Property and Financial Affairs LPA allows your Attorney(s) to deal with your financial affairs, for example, to pay your bills, sell your property or investments and operate your bank accounts.
You allow your Attorney(s) to use your LPA while you still have capacity to make financial decisions yourself. If you allow your Attorney to make decisions before you have lost mental capacity, it does not mean that they automatically take all financial decisions for you, it just means that they can take these decisions if you require their assistance sometime in the future. This can be helpful if you are physically unwell or on holiday for an extended period of time. Of course, this authority will extend to when you have lost mental capacity too.
Health and Welfare LPA
This type of LPA allows your Attorney(s) to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the LPA for property and financial affairs, your Attorney(s) can only use it when you have lost the mental capacity to make decisions yourself.
Your Attorney(s) cannot make decisions about life-sustaining treatment unless you specifically allow this in the LPA. Life-sustaining treatment can include ventilation to help with breathing, feeding through a tube and resuscitation. Again, however, it is specific to the facts and can include something as simple as administering antibiotics or something like pneumonia (or refusing such treatment, as the case may be).
Prior to the Mental Capacity Act 2005 and LPAs, it was not possible to make health decisions under an EPA, and the alternative was to put in place an advance decision (or a living Will). This is where an adult makes the decision, whilst they still have capacity, to refuse the giving or continuing of specific medical treatment in the future when they have lost capacity. There are sometimes known as advance decisions to refuse medical treatment (ADRT).
Whilst advance decisions can still be put in place, there are, however, not without their limitations. A decision-maker cannot use an advance decision to require a healthcare professional to provide particular medical treatment, and therefore there is no compulsion to treat under an advance decision. Similarly, they cannot be used to refuse actions needed to keep the decision-maker comfortable (such as basic or essential care).
If you have an advance decision in place, it is important that your family and healthcare professionals are informed of it and it should be reviewed regularly to ensure that it meets your needs, and if it does not, it can be amended or withdrawn, provided you have the necessary mental capacity to do so.
How are Attorneys appointed?
Under both types and LPA, and under an EPA, if there is more than one Attorney is appointed they can act jointly or jointly and severally. Attorneys appointed jointly must all agree and always act together – this can potentially cause some difficulties if an Attorney dies and no replacement has been appointed and consequently make the LPAs and EPA unusable.
Where Attorneys are appointed on a joint and several basis, Attorneys can act together, but they may also act independently. If one of the Attorneys dies, the surviving Attorney will still be able to continue to act as an Attorney.
What happens when the donor dies?
When the Donor dies, both types of LPA and an EPA automatically come to an end. The original Power of Attorney should be sent to the Office of the Public Guardian together with a death certificate (or to the solicitor handling the estate).
The importance of putting in place Lasting Powers of Attorney should not be underestimated.
Tomorrow I shall be looking into what happens when you lose mental capacity and no Power of Attorney has been put in place, the role of the Court of Protection and appointing Deputies.
If you would like to discuss Powers of Attorney with our Private Client Team, please do not hesitate to get in touch with us on 0191 232 8345 or email Tom Bridge at firstname.lastname@example.org for further information.
We have a team of solicitors with specialist expertise in relation to all types of Power of Attorney who can advise on the preparation, execution and registration of these documents.