Lasting Power of Attorney

As you get older, you may wish to think about what will happen if you become unable to manage your own finances or make decisions about your health & welfare.

Without a Lasting Power of Attorney (LPA) the Court of Protection will appoint a Deputy to manage your affairs for you, who may not be aware of your personal circumstances and in addition there will probably be significant legal fees to pay.

This could apply to anyone, at any age, by reason of illness, disability or mental impairment who may no longer be able to deal with even simple matters like handling a bank or building society account or transacting a house sale.

A Lasting Power of Attorney (LPA) is a legal document that lets you appoint someone to make decisions on your behalf. It can be used at time in the future if you are not able to make your own decisions.

Once your LPA has been registered your attorney(s) can make decisions for you when you still have capacity, as well as when you lack capacity. For example it may be easier for you to give your attorney the power to carry out tasks such as paying your bills because you:

• Find it difficult to get about
• Find it difficult to talk on the telephone
• Are out of the country for long periods of time

Your attorney(s) can make decisions for you about any or all of your property and financial matters . These can include:

• Paying your bills
• Collecting your benefits
• Selling your house

• Your permanent residence
• Appropriate care and accommodation
• The medical treatment and therapies you agree to, and those you don’t
• Your dress, dietary requirements and personal appearance
• Activities and holidays
• Giving or refusing consent for medical treatment, including operations
• Making decisions on dental or optical care
• Allowing you to take part in research projects
• Giving express permission you to undergo ‘life-sustaining treatment’, including: a serious surgical operation, such as a heart bypass, an organ transplant, Chemotherapy, radiotherapy or other cancer treatments. If you give your attorney permission for you to undergo life-sustaining treatments, the attorney can also give doctors permission to withdraw the treatment should it be ineffective.

Who would make important financial decisions for you if were to become ill or disabled without a power of attorney? No one could act on your behalf unless they first went to court and were appointed your attorney. Even your spouse and children would be powerless to act. Who would be authorised to handle your important financial, legal and business affairs? Unless you appoint someone to act on your behalf with a Lasting Power of Attorney nobody can act for you until appointed by the court.

While courts will appoint someone to act for you and to protect your interests, this is not always a desirable alternative for two reasons:

1. The time delay. It can take several weeks or even months to have someone appointed who will have the authority to make legal, financial and business decisions for you.

2. Selection of attorney. When you are ill or disabled you lose the ability to select your attorney. The court may or may not appoint the attorney that you would prefer. Moreover, you may decide upon one person to make certain decisions for you and select another individual for other affairs. This is only possible when you appoint these individuals while you have the capacity to act.

With a Lasting Power of Attorney your attorney can act for you immediately once registered.

Many of us now understand the advantages of making a Property and Financial Affairs LPA, fewer recognise the benefits of making a Health and Welfare LPA.

Both types of LPA enable you to appoint someone of your choice (your “Attorney”) to act with legal authority on your behalf to make decisions if you should ever become unable to do so yourself.

A Health and Welfare LPA enables you to choose the person, or persons, you would wish to make personal decisions on your behalf, in such circumstances. This would include decisions about medical treatment or care, or where you should live.

Unlike the financial LPA, a Health and Welfare LPA can only ever be used if you have lost the mental capacity to make such decisions yourself. All the time you have capacity, no one else can make these decisions for you. However, by making the Health and Welfare LPA, you can nominate someone you trust, who knows your wishes, to take such decisions. Your Attorney has a duty to make such decisions in your best interests.

Do not confuse a Health and Welfare LPA with a Last Will and Testament. The Health and Welfare LPA only expresses your wishes concerning medical care. It cannot be used to determine who will inherit your property upon your death, to appoint an executor to administer your estate or to appoint a guardian for your minor children. These can only be accomplished with a Last Will and Testament.