It's that time of year again when romance is in the air, and we tend to think more fondly about our loved ones. Valentine's Day offers an occasion to celebrate those that we care about and hold dear. Whether you celebrate the day itself or not, it is important to consider how we can care and support our loved ones beyond this special occasion, and long into the future.

Whether we are caring for elderly parents, or planning for later life ourselves, it's never too early to consider putting Lasting Powers of Attorney in place.

Why make a Lasting Power of Attorney ("LPA")?

Lasting Powers of Attorney ("LPAs") can provide peace of mind for us and our loved ones by providing clarity about who manages our affairs and how they do this in the event that there is a deterioration in our mental (and physical) capacity.

An LPA allows our loved ones (known as Attorneys) to make decisions on our behalf when we are no longer able to make those decisions ourselves.

Who can I appoint as my Attorneys?

You can choose to appoint anyone as your attorney, provided that they are over the age of 18 and willing and capable to act on your behalf.

You should appoint individuals whom you would trust to manage your financial and health decisions.

Types of Lasting Powers of Attorney

LPAs can cover a range of decisions about our property and finances, our medical treatment and our care needs. There are two types of LPAs which cover these decisions:

  • LPA for Property & Financial Affairs; and
  • LPA for Health & Welfare.

A Property & Financial LPA can be used by your attorneys whilst you still have mental capacity, but perhaps lack the physical capacity to manage these affairs. This type of LPA is therefore useful in circumstances where you cannot leave the house to get to your bank, perhaps due to mobility issues, illness, or residency in a care home.

A Health & Welfare LPA can only be used if (and only if) you have lost mental capacity. Your attorneys would then step in and make these decisions on your behalf. Your LPA can include preferences about your medical treatment, including life sustainable treatment, views on your personal care needs and resuscitation orders. Whilst you still have mental capacity, you make all of these decisions yourself.

What is mental capacity?

Mental capacity essentially refers to the ability to be able to make your own decisions, and it is governed by 5 main principles contained under the Mental Capacity Act 2005 as follows:

  • Capacity must be assumed unless there is evidence to the contrary;
  • A person must not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success;
  • A person who makes an unwise decision is not to be treated as unable to make a decision;
  • Any act or decision made on behalf of someone who lacks capacity must be done or made in their best interest; and
  • Before the above is done, it must be considered whether the purpose can be achieved in a less restrictive way.

You must have mental capacity in order to create either type of Lasting Power of Attorney.

What if my loved one or I have a diagnosis of a memory related illness? Can I still make LPAs?

Memory related illnesses need not be a complete bar to creating LPAs. It would depend entirely on what stage of the diagnosis you or your loved ones are at.

If you are able to still understand the nature of creating an LPA, the extent of your estate and weigh up and retain information to make informed decisions then it is likely that you will have sufficient mental capacity to proceed with making an LPA.

In certain circumstances, it might be appropriate to engage with a medical professional to certify that you have sufficient capacity to create an LPA.

It is always better to create an LPA in advance of any decline in your mental capacity.

What do I do if my loved one has already lost capacity?

If you have lost capacity (which can happen through illness or accident, as well as age) without having created an LPA, then in order for your loved ones to make decisions on your behalf they must make an application to the Court of Protection.

The Court of Protection reviews the application and decides whether to grant a Deputy Order or decline it. Unfortunately, this process is lengthy and expensive, with applications taking 12 months or more to hurdle through the Court system. During this time, our loved ones are unable to deal with our affairs, which often leads to additional stress at an already difficult time.

Additionally, the Court of Protection are only likely to consider applications for Financial Deputyship rather than for Health & Welfare, because it is assumed that the medical profession will have the appropriate medical knowledge to act in the best interests of the person who lacks capacity, and this would be preferred over an appointment of a relative.

We would always recommend creating LPAs whilst you are still able to.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.