If illness becomes more than a temporary issue, we may find it affects our ability to live as independently as we have done in the past.
Sometimes the problem is physical, such as difficulty with mobility. If family members and friends are unable to meet our needs, this may involve paying for carers to help us.
Alternatively, some issues are with diminishing mental capacity and in this scenario, we may be the last person to realise that we are becoming ill. In these circumstances, it is essential that someone we know and trust is helping us to make decisions.
We may need assistance with managing our finances, claiming benefits, dealing with the tax office or paying bills. This may arise where we have a lengthy stay in hospital, are unable to attend to these matters ourselves or if we are becoming confused.
Losing the ability to manage our own affairs is not restricted to later life. Due to unforeseen incidents such as a car accident, a stroke or another sudden illness, we may lose the ability to make decisions or act on our own behalf, even at a young age.
Unless you have appointed someone to help you, losing the ability to make decisions for yourself means that the Court of Protection will appoint someone on your behalf. If a family member or trusted friend wishes to act in this capacity, they will have to apply to the court and be subject to the court's decisions. The Court of Protection is a costly and time-consuming process and you will have no control over who is appointed to make decisions on your behalf.
To avoid this, it is important that you appoint someone that you know and trust whilst you have the capacity to do so. The document used to appoint someone in this capacity is a Lasting Power of Attorney.
Until October 2007 the power of attorneys being created were called Enduing Powers of Attorney. This was then replaced by a more comprehensive document called a Lasting Power of Attorney (LPA); there are two types of LPA.
The direct replacement for the Enduring Power of Attorney is the LPA – Property and Financial Affairs. The document deals specifically with the appointment of one or more people (your attorneys) to manage your financial affairs if you are unable to do so.
The document gives your chosen attorneys the authority to act on your behalf in financial matters such as operating your bank account, paying bills, selling your property, dealing with your tax affairs and claiming benefits. There are strict rules preventing your attorneys from using your assets for anything other than for your benefit.
The second type of Lasting Power of Attorney is for Health and Welfare decisions. This can include where you live, what you wear, the type and quality of care you receive, medical treatment and medicines. No-one can make these decisions for you whilst you still have the capacity to do so for yourself. There is also an option to authorise your attorneys to make end of life decisions for you if you are in a terminal condition.
Lasting Powers of Attorney must be registered with the court before they can be used.
You have the opportunity to place restrictions on when and how your LPAs can be used. You can appoint primary and reserve attorneys. In addition, you are asked to name a person or persons that must be notified before your LPA is used.
In order for your LPAs to be valid, you must have demonstrated to a suitably qualified person that you understand the purpose and scope of the appointment and the powers that your attorneys will have on your behalf. This person is called the Certificate Provider.
Why do I need a power of attorney?
Stephen's life changed in a hundred ways when his elderly mother, Emily, suffered a major stroke. Unable to walk or communicate, she needed full-time care after leaving hospital. Stephen was left not only with the problem of caring for her as best he could, but also with managing her affairs.
Stephen and Emily had always assumed that he'd be able to look after her finances if she became unable to do so herself. Now, however, she was deemed to be mentally incapable and therefore a Lasting Power of Attorney could not be created.
Stephen had to apply to the Office of the Public Guardian for the only alternative – appointment as a 'Deputy'. The process was lengthy and time-consuming and meant that her money was untouchable for months, despite all the funds she needed for her care, transport, medical expenses and support. Eventually, Stephen was appointed a Deputy for which he was charged an application fee and ongoing annual fees. After that, Stephen had to suffer the indignity of regular checks to prove that he was looking after his mother appropriately. 'If only we'd arranged a Lasting Power of Attorney' when she was healthy' said Stephen, 'all this distress, expense and worry could have been avoided. Since this happened, I've made sure I'm covered by a Lasting Power of Attorney so if the worst happens to me, no-one else in my family will have to go through what Mum and I have endured'.
©2020 Cavendish Wills