Whilst the benefit of having a Will in place is generally well recognised, issues concerning mental capacity are all too often overlooked.
Nobody wants to think of a time where they may be incapable of doing things for themselves but unfortunately that is the reality for many and has become particularly relevant in this day and age where people are living longer due to medical advances. Thought should certainly be given to what you would like to happen if you lose mental capacity. Loss of mental capacity could be a result of the woes which regrettably come with age but could also result from an accident or illness at any age.
Lasting Powers of Attorney (LPA)
You are able to choose somebody to act for you in the event that you become incapable of making decisions yourself, this person would be your Attorney. It is advisable to choose a close relative or trustworthy friend to be able to make these decisions for you, if the worst should happen.
Whilst Enduring Powers of Attorney signed before 1st October 2007 are still valid, these were replaced by Lasting Powers of Attorney.
There are currently two types of LPA: Property and Financial Affairs LPA and Health & Welfare LPA.
Lasting Powers of Attorney allow you to plan in advance not only the people you want to make decisions but also the decisions you want to be made on your behalf if/when you lose capacity to make them yourself and how you want the people to make these decisions.
A registered LPA for Property and Financial Affairs lets the appointed Attorney(s) you choose make decisions including;
A registered LPA for Health and Welfare lets the appointed Attorney(s) you choose make decisions including;
Court of Protection
If you lose mental capacity and have not completed an LPA, an application will have to be made to the Court of Protection for somebody to be appointed as your Deputy. This process can be costly, burdensome and stressful on your family and/or friends at a time which will undoubtedly already be difficult. There is also an ongoing supervision process by the Office of the Public Guardian, which can be costly and includes the production by the Deputy of an annual report. Furthermore it may be necessary for the Deputy to apply to the Court of Protection in the future before decisions can be made, which will again attract additional costs and could be stressful on the people involved.
Akin to putting a Will in place to deal with matters in the event of your death, whilst you are able to, you would be strongly advised to “think ahead” and complete Lasting Powers of Attorney.
For further information or advice, please contact Nicola Matthews, partner at Hay & Kilner.
Call: 0191 232 8345