Most of us take for granted our ability to make our own decisions. Where we live, how we spend our money, and what medical treatment we receive are all matters we expect to control ourselves.
But what happens if an illness, accident, medication or medical procedure means that, temporarily or permanently, you are unable to make a particular decision for yourself?
In these situations, it’s important to have a Lasting Power of Attorney (LPA) in place.
Mental capacity is not simply “all or nothing”
A common misconception is that a person either has mental capacity or they do not. In reality, capacity is much more nuanced.
Under the Mental Capacity Act 2005, capacity is generally decision-specific. Someone may be unable to make one particular decision but they can be deemed capable of making another.
For example, a person might be able to decide where they want to live but struggle to understand complex financial arrangements. Equally, someone might have sufficient capacity to make a decision about their medical treatment but not have the capacity to make a valid will.
Capacity can also change over time. A person may lack capacity during a period of illness or confusion and later regain it.
The important point is that losing capacity for one decision does not automatically mean losing the ability to make all decisions.
Capacity can also be temporary
Mental capacity issues are not confined to conditions such as dementia or permanent brain injury.
Imagine you are having an operation under a general anaesthetic. You may be capable of making decisions before the procedure, but there could be a period afterwards when you are confused, sedated or otherwise unable to make important decisions.
Similarly, illness, medication, an accident or another temporary condition could affect your ability to make decisions.
In these scenarios, an LPA can be useful not only as long-term protection, but also as part of sensible contingency planning.
What is a Lasting Power of Attorney?
An LPA is a legal document allowing you to appoint people you trust, known as your attorneys, to make decisions on your behalf.
There are two types:
Property and Financial Affairs LPA: This covers matters such as bank accounts, bills, investments and property.
Health and Welfare LPA: This covers matters such as care, where you live, day-to-day welfare and, if you give the relevant authority, certain decisions about life-sustaining treatment.
You can make either type or both.
Importantly, a Health and Welfare LPA can only be used when you lack capacity to make the relevant decision yourself. A Property and Financial Affairs LPA can, depending on how it is drafted, be used while you still have capacity.
Why a Health and Welfare LPA is the more pressing one
People often focus on putting a Property and Financial Affairs LPA in place. This is understandable because if you can’t manage your bank accounts or property, the practical consequences can be immediate.
However, a Health and Welfare LPA can actually be the more pressing document to put in place.
If you lose capacity without having made an LPA, your family cannot simply step into your shoes and automatically make all decisions for you. In some circumstances, an application to the Court of Protection may be necessary to appoint a deputy or obtain a specific decision.
Health and welfare deputyships are possible, but the process involves going to court and relying on the decision of a judge. In matters of health and welfare, judges often have reservations about granting deputyship and will require significant amounts of evidence and information before granting such an order. There is therefore no guarantee that a family member will simply be able to take over decision-making.
Having an LPA in place allows you to decide in advance who you want to make these important decisions.
Make your LPAs early for safekeeping
An LPA must be made while you have the necessary mental capacity. Once capacity has been lost, it is too late to make one. The LPA also needs to be registered before it can be used.
For that reason, an LPA is something to consider before you need it.
You do not have to be elderly or seriously ill to make one. You might make an LPA while you are fit and healthy, knowing that you may never need it. Think of it as keeping an umbrella in the cupboard – hopefully you won’t need it, but it is much easier to have it ready before the rain starts.
Choosing your certificate provider
When an LPA is made, a certificate provider must confirm that you understand what you are doing and are making the LPA freely.
In straightforward circumstances, a certificate provider may be someone who knows you well and can properly provide the required confirmation.
However, where there is likely to be disagreement within a family, concerns about undue influence, or questions about your capacity, it can be sensible to consider using an appropriately qualified professional, such as a solicitor or medical professional, where appropriate.
A professional certificate provider cannot guarantee that an LPA will never be challenged. However, having independent evidence that your capacity and understanding were considered when the document was made may be valuable if questions are raised later.
Planning ahead gives you more control
Mental capacity can be temporary or permanent, and it can affect some decisions but not others. That is why planning for incapacity should not be seen as something reserved for later life.
A properly prepared LPA allows you to choose who you trust to help with important decisions if you cannot make them yourself. It can also reduce the uncertainty, cost and potential family disagreement that may arise if no arrangements are made.
For many people, the best time to think about an LPA is when there is no immediate crisis and while you still have the capacity to make the choice yourself.
If you need support because your circumstances have changed, our team can guide you step by step through your options. Contact Helen Freely today at hf@branchaustinmccormick.com.
