One of the most important documents you can have
Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection.
Lasting Power of Attorney (LPA)
We all hope not to lose capacity in our lives but it is not something that is guaranteed and a loss of capacity can onset quickly. Research by Solicitors For the Elderly (SFE), shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. But this isn’t the case unless a Health & Welfare LPA is in place. Whilst there’s been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one.
Health & Welfare LPA
A Health & Welfare LPA allows the person making it to appoint attorneys to make decisions for them should they lose the ability to make decisions for themselves, in other words, they lose mental capacity. The attorneys can then make important decisions regarding medical care and treatment, be involved in decisions about where they should live and, depending on how the LPA has been drafted, give or refuse consent to life sustaining treatment on that person’s behalf.
Without a Health & Welfare LPA, your family generally do not have the right to make decisions about your welfare, healthcare and medical treatment. It is likely that the doctors and social services would make those decisions and you hope they will consult and listen to the family. If the family were concerned or disagreed with the decisions being made/proposed then they would have to apply to the Court of Protection, causing delays in treatment.
Property & Financial Affairs LPA
The Property & Financial Affairs LPA is the other type and can be very important when someone has gone into hospital or care and bills need paying but they cannot do this themselves. With this LPA you can appoint attorneys to make decisions regarding your financial affairs, including paying bills, dealing with bank accounts and even selling property, either as soon as the LPA is registered your permission is granted or only if you lose mental capacity.
Without a Property & Financial Affairs LPA, the bank is unlikely to allow anyone to access your account and, if you lose capacity, could freeze the account completely causing significant problems with ensuring that bills/debts are paid and you have the access to money you need. A loss of capacity would also prevent your property from being easily sold, even when jointly owned, which can cause problems if you had to move elsewhere or otherwise needed the capital. Again, the family would have to apply to the Court of Protection, for a Deputyship Order – a lengthy and costly process.
How we can help
When completing an LPA a “Certificate Provider” must also sign to confirm capacity. Furthermore, LPAs have to be signed in a very strict order and getting this wrong will invalidate it. According to Which? 22,000 LPAs are rejected every year due to the forms not being completed properly. Therefore, it is critical that you get your documents right. Use a specialist lawyer, who can also act as Certificate Provider and is experienced in this area of the law, and trained to support people making these crucial, complex and difficult decisions. Highly regulated institutions, like banks have strict rules about accepting the validity of documents, in particular LPAs, so it is essential to get your legal documents done correctly.
What happens if there are no LPAs but decisions need to be made?
Unfortunately we too often see situations where LPAs were not taken out in time and are not an option. In these situations we are able to help with applications to the Court of Protection for a Deputy to be appointed. However this is not ideal as such applications are expensive, lengthy and almost always happen at a time of crisis.
How we can help
When you have made LPAs you know that the people you trust and have chosen will step in should you lose mental capacity. Using lawyers experienced in this area of law should take the stress out of the process and ensure that all steps are correctly followed.
For more information and advice on the importance of having LPAs in place, please contact our Wills, Trusts and Probate Team on 01733 882800 or email me via [email protected].
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