None of us know what tomorrow has in store for us. We all assume that if we should ever become incapable of managing our affairs, someone we trust would look after us. Most of us refuse to accept there is even a risk of it happening. But diminished mental capacity is not just a problem for the elderly or infirm, it is a risk to which we are all open, be it from a simple fall at home or from a road traffic accident. The Mental Capacity Act 2005 (as amended) provides that if you did not appoint an Attorney whilst you were able, then only a Court can appoint one in your place. In those circumstances, your family would have to apply to the Court of Protection for “attorney” status. This is a lengthy and time consuming process with potentially lengthy delays at a time when your loved ones would be better occupied helping you rather than being involved in Court procedures. Furthermore, such a legal process is quite expensive. The only certain way to protect your interests in such circumstances is to make a Lasting Power of Attorney (“LPA”) whilst you are of full mental capacity.
If you execute a correctly drafted LPA in advance of any mental incapacity you can name the persons who you wish to become your attorney and state the powers you would like them to have. Should they be needed to step in any time during your mental incapacity they could do so without the need for Court proceedings, avoiding the heartache and unnecessary expense. Please further note that any ordinary Power of Attorney ceases to be valid if you lose mental capacity. There are two types of LPA:
- An LPA covering your property and financial affairs, including operating your bank accounts, claiming and receiving benefits on your behalf and making tax returns; and
- An LPA covering your health and personal welfare, including your personal care, such as medical treatment, where you live, and the right to choose where you might be cared for. This is also very important because without this power your Local Authority might make decisions that are against the family’s wishes.
You might consider making an LPA but leaving it unregistered until it is needed. If, in the meantime, you need a Power of Attorney to deal with your property and affairs this could be an ordinary Power of Attorney, which is simpler and less expensive to make. This procedure saves the cost of the registration fee for the LPA and also ensures that your LPA is off the public register. The only possible down-side is that if the LPA is needed in an emergency, leaving it unregistered could prove inconvenient because of the minimum five week notice period (to allow for objections) following the application for registration.
It is obviously imperative that any LPA is drafted and prepared with care to ensure that it reflects your wishes and circumstances correctly. If not, any mistakes are only likely to be discovered at the time when the LPA is needed. Therefore, professional assistance should always be considered in such circumstances.