1. What measures can be put in place if you fall ill, to ensure your wishes are followed?
You can put in place a Health and Welfare Lasting Power of Attorney. This is a document which enables you to provide authority to your chosen Attorneys to make decisions for you with regard to the care you receive and also, to consent to or refuse life sustaining treatment on your behalf. Your Attorneys would only be able to act for you if the LPA has been registered with the Office of the Public Guardian and in the event that you no longer had the relevant capacity to make your own decisions.
2. What is an LPA? Why is it so important?
LPAs are documents whereby you can choose individuals, called Attorneys, to make decisions about your Property and Financial Affairs and Health and Welfare in the event that you cannot do so yourself. Without the authority that LPAs provide, it can make it very difficult for others to help you when needed, often resulting in the need for an application to be made to the Court of Protection to request this authority. This can be a lengthy and costly process.
3. Does making an LPA mean I lose control of making my own decisions?
Your Attorneys have an obligation under the Mental Capacity Act to run all decisions passed you, whilst you have the capacity to make your own decisions. They also have an obligation to act in your best interests. So no, making an LPA does not mean that you lose control of your own decisions.
4. What is the difference between an executor and an attorney?
An Executor is appointed in your Will, which means they only have authority in the event that you pass away. An Attorney’s authority is granted under a valid LPA document and remains in place during your lifetime and is revoked upon death.
5. What support would my appointed attorney need to be able to act?
It is useful to provide your Attorneys with details relating to your assets and also your wishes with regard to the care you would like to receive, if needed. It is also beneficial to prepare a letter of wishes outlining your wishes with regard to life sustaining treatment, so that your Attorneys can refer to this, should the need arise. Your Attorneys could also seek guidance from a Solicitor or the Office of the Public Guardian if they had any questions about their authority.
6. What are the proposed changes to LPAs, and should I be worried about them?
It is proposed by the Ministry of Justice and the Office of the Public Guardian, to modernise LPAs through the use of technology. The proposals include the replacement of the role of a witness, who confirms it was the Donor who signed and intended to make the LPA and reducing the objection period to 2 weeks (in practice giving an objective little over a week to make their objection). Whilst it is acknowledged that there is a need to improve the current system, this should not be at the cost of increasing the risk of exploitation of a Donor, who may be vulnerable to manipulation, control, deceit and other forms of abuse.
At Ellisons, we understand that making a Lasting Power of Attorney can be a daunting task. We have an experienced team on hand to make the process straightforward and worry free. Contact our Wills, Trusts and Probate team, who will be able to guide you through the options and advise you on the best way forward.
