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What is a Lasting Power of Attorney?

To think or talk about what would happen if we lose the ability to make our own decisions is uncomfortable.

Every day we make decisions about our lives. The ability to make these decisions is called mental capacity. People may not be able to make decisions some or all the time, perhaps because they have a learning disability, dementia, brain injury or had a stroke or other illness.

It's important to realise that living with mental health conditions (depression, bipolar disorder, schizophrenia, etc), does not necessarily mean someone lacks capacity.

If the worst should happen and you develop a condition that renders you incapable of making your own decisions, you would want someone you know and trust to have the legal power to make your decisions about finances, property, health and welfare.

WHAT IS THE ALTERNATIVE?

Thousands of families are running up costly legal bills to handle the financial affairs of mentally or physically incapable relatives. This could have been avoided by the completion of Lasting Powers of Attorney.

More than 10,000 families every year have to go to court to appoint 'deputies' so relatives and friends can make decisions for ill or incapacitated people.

If your family must apply to the Court of Protection, you will have no say in who is made a 'deputy' because, by this time, you are likely to be considered incapable of making your own decisions.

This is avoided by the completion of a Lasting Power of Attorney while a person is still healthy, saving their family from the long, arduous and expensive process of applying to the Court of Protection for a Deputyship Order.

WHY MAKE A LASTING POWER OF ATTORNEY?

By making a Lasting Power of Attorney (LPA), you can set out how you wish your attorneys to handle your property and financial affairs and ensure you get the care, treatment and day-to-day routine that you want.

This may include selling your house to pay for your care or claiming your pension and benefits to ensure you meet financial responsibilities such as bills.

As you have to be healthy when you apply for an LPA, you are able to select the people who will be in charge of your affairs.

Your attorney should only make choices for you if you are unable to make a specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs; if you wake from the coma, you will then be able to make your own decisions again.

Lasting Powers of Attorney can also be useful while you're still healthy; if you are on holiday and something happens to your home while you're away, you can get one of your attorneys to act in your absence.

You can split powers between your attorneys, or have them operate jointly. You can give specific instructions and also impose restrictions that must be followed.

WHO CAN BE AN ATTORNEY?

You cannot nominate anyone under the age of 18 to be your attorney or someone incapable of making their own decisions. Also excluded are those subject to debt relief orders, or who have been declared bankrupt.

It's best to choose someone you know well who has a good record of being responsible with their own finances and you trust to make the best decisions for you.

There are two types of Lasting Powers of Attorney you can make.

There is one LPA form for Financial Decisions which covers Property and Financial Affairs and another for Health and Care Decisions which covers Health and Welfare.

The LPA Property and Financial Affairs gives attorneys power to sell the donor's properties and investments, pay bills, and make limited gifts to others on the donor's behalf.

The Health and Welfare LPA gives the attorneys power to make decisions about the donor's care and medical treatment, including the power to give or refuse consent for certain kinds of treatment; they cannot make decisions about life-sustaining treatment unless it is specifically stated in the LPA.

While the LPA covering Financial Decisions can be used while the donor is still capable, Health and Care Decisions can only be used if the donor is believed to have lost the capacity to make their own decisions.

How can TMJ Legal Services help?

We can assist with preparing Powers of Attorney or give you any further information. Our objective is to be your friendly local solicitors. We are happy to assist with a free consultation to help you decide your next step.

Call Clair Dunkerley direct dial 01429 230 034.

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About the author

TMJ Legal Services

TMJ Legal Services has been helping individuals and businesses since 1986.

TMJ Legal Services

TMJ Legal Services has been helping individuals and businesses since 1986. We offer a range of advice and services. 

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