06 Apr One of the most important forms you may need to fill out
There maybe a time in the future when our health deteriorates and we may lose mental capacity.
If this happens who will make the decisions regarding our Long term health & welfare should we need to go into a care home or make decisions regarding our Property & Financial Affairs?
The only way to make sure that you are cared for and protected is to put in place Lasting Powers of Attorney.
There are two types of Lasting Power of Attorney:-
- Health and Welfare Lasting Power of Attorney (LPA UK).
- Property and Financial Affairs Lasting Power of Attorney
A UK LPA/ Lasting Power of Attorney can help you plan how your health, well being and financial affairs will be looked after. It allows you to plan in advance.
- The decisions you want to be made on your behalf if you lose the ability to make them yourself.
- The people you want to empower to make these decisions.
- How you want the people to make these decisions.
- Check out this BBC story on LPAs in the UK
Having a LPA UK/ Lasting Power of Attorney is a safe way of maintaining control over decisions made for you because:
- It has to be registered with the Office of the Public Guardian before it can be used.
- You choose someone to provide a ‘certificate.’ This means they confirm that you understand the significance and purpose of what you’re agreeing to in each of the types of Lasting Power of Attorney.
- You can choose who gets told about your Lasting Powers of Attorney when they are registered (so they have an opportunity to raise concerns.)
- Your signature and the signatures of your chosen attorneys must be witnessed.
- Your LPA UK attorney(s) must follow the Code of Practice of the Mental Capacity Act 2005 and act in your best interest.
A Lasting Power of Attorney Property and Financial Affairs allows you to choose one or more people to make property and financial affairs decisions for you. This could include decisions about paying bills or selling your home. You can appoint someone as an attorney to look after your property and financial affairs at any time provided you have “mental capacity” – broadly the ability to weigh information and make an informed decision. You can also include a condition that means the attorney can only make decisions when you lose the ability to do so yourself. Before October 2007, Enduring Powers of Attorney provided the same functions. If you have one of those you may only need the Health and Welfare LPA.
2) The Health and Welfare Lasting Power of Attorney
A Health and Welfare Lasting Power of Attorney allows you to choose one or more people to make decisions for things such as medical treatment, where you live, who you see, what you eat etc etc. A Health and Welfare Lasting Power of Attorney can only be used if you lack the ability to make decisions for yourself and are unlikely to recover sufficiently to be able to make the necessary decision with a reasonable time.
If you fail to take the basic precautions of organising both types of Lasting Powers of Attorney and perhaps have a car accident, stroke, trip over a paving stone and lose the ability to make decisions, someone with have to apply to be appointed as your DEPUTY.
Who can become a deputy.
A deputy is usually a close friend or family member of the person who needs help making decisions. A deputy can also be a professional, such as an accountant or a solicitor. Any deputy must be over the age of 18.
The Court of Protection will decide who can be a deputy.
How you can become a deputy.
You must apply to or be appointed by the Court of Protection to become someone’s deputy. You can be appointed as:
- a deputy for property and affairs
- a deputy for personal welfare
The court will send you an order – a legal document that details a decision they have made – appointing you as a deputy. Your order will explain what decisions you are legally allowed to make for someone else.
Your powers will be decided by the Court of Protection based on the other person’s needs and could include making decisions about money and healthcare.
You can read more about the Court of Protection and how they work with deputies by using the link below.
So if you don’t make both types of lasting power of attorney, you and your family could be in for a great deal of extra cost and grief as you go through the process of attempting to be appointed as a deputy.
Your responsibilities as a deputy
The decisions you make as a deputy can have a big impact on the other person’s life. As a deputy, you should:
- only make decisions in the person’s best interests
- only make the decisions the court says you can make
- apply a high standard of care when making decisions
There are more details about the guidance for deputies in the Mental Capacity Act 2005 Code of Practice.
- Understanding the Mental Capacity Act
- Making decisions for someone else
The decisions you can make as a deputy will be decided by the court. If a decision you want to make is not included in the order you can apply to the court. The court can either:
- change your powers so that you can make the decision
- make the particular decision instead of you doing so
Before you make a decision for someone else, you should consider if that person might be able to made the decision on their own. You can read more information about how to decide if a person lacks the mental capacity to make a decision.
When not to make decisions
As a deputy you are not able to make a decision for someone in certain circumstances. These include:
- when you believe the person can make the decision themselves
- when it will physically restrain the person, unless it is needed to prevent them coming to harm
- when it goes against a decision made by an attorney acting under a Lasting Power of Attorney
- when you want to stop life-sustaining, for example turning off a life-support machine
What you cannot do as a deputy
As a deputy you will not be able to make certain decisions. These include:
- making a will or any addition to a will on behalf of the person
- making large gifts out of the person’s money
- holding any money or property on behalf of the person
The Office of the Public Guardian can investigate you if they believe they are not fulfilling your duties properly. If you make decisions as a deputy that you are not allowed to make, you might be removed from your position.