23 Jun Overcoming objections to making a power of attorney
Putting in place a Lasting Power of Attorney can give you peace of mind that someone you trust is in charge of your affairs. However, in all too many cases, people put off making Lasting Powers of Attorney for themselves, often with disastrous consequences for their loved ones.
In our Facebook Group, we see this all too often and this can result in a crisis situation.
This is usually due to the following perceptions:
- A belief that you are giving control of your affairs to someone else, particularly of bank accounts
- The fear that someone will make a decision about your health which you would not normally have consented to
- Not wanting to face the prospect that you will ever become ill or perhaps develop dementia
- Because you have capacity now, it is difficult to acknowledge or foresee that you might lose capacity in the future
- Being frightened of the prospect of losing capacity
- The costs involved in having a solicitor/professional draw up the documents
- Unease around nominating certain family members as Attorneys over other ones, which might lead to family disputes
- Not fully understanding the implications of not having Lasting Powers of Attorney in place
In this article, we aim to debunk these common fears and popular misconceptions, but first we should briefly remind ourselves what LPAs do and how they are used.
Types of power of attorney
There are 3 main types of power of attorney: lasting power of attorney (LPA), enduring power of attorney (EPA) and ordinary power of attorney.
LPAs came into force in October 2007. Before that, people made EPAs. It’s no longer possible to make an EPA, but an EPA made before October 2007 remains valid.
An ordinary power of attorney allows someone to look after your financial affairs for a temporary period. It will end if you lose mental capacity to make decisions.
We are concerned here with Lasting Power of Attorney (LPA)
There are too distinct documents:
- The property and financial affairs LPA
- The health & welfare LPA
A property and financial affairs LPA gives your Attorney the power to make decisions about your money and property. This includes managing your bank or building society accounts, paying bills, collecting your pension or benefits and, if necessary, selling your home.However, it is crucial to note that, once registered with the Office of the Public Guardian, it can be used immediately but only if you give your Attorneys your express permission to act on your behalf.This puts you back in the driving seat. Indeed, it can be very handy. Imagine being able to send someone else to the bank to pay a bill or set up a direct debit if you were feeling a bit under the weather?If you ever lose capacity, the bank will freeze any accounts you are named on (including joint accounts), unless you have a a nominated attorney in place.Health and welfare LPA
A health and welfare LPA gives your attorney the power to make decisions about your daily routine (washing, dressing, eating), medical care, moving into a care home and life-sustaining medical treatment.However, it can only be used if you’re unable to make your own decisions.
Many people think of a lack of capacity as a progression (through dementia), but capacity can be fluctuating.
Say you are normally perfectly well. However, tomorrow you get run over by the number 47 bus. You are in a coma in A&E. You couldn’t make a decision to save your life (as the saying goes!). Your family members will be asked if there is an LPA for Health & Welfare in place. Once this is noted on the ward, the clinicians are legally bound to talk to your Attorneys as though they were talking to you.
You wake up from your coma, and the doctors assess that you can make your own decisions again, they will revert back to talking to you about your own health.
This puts you back in control again.
It important to note here that if you have an old Enduring Power of Attorney in place, this just deals with financial matter and not health and welfare issues.
What if you don’t have a Lasting Power of Attorney in place?
Well, without meaning to be a scaremonger, this could spell disaster for your family.
If you lose capacity, the banks can freeze your accounts and investments, stop you carrying out any trade or business, stop you giving to charities or your usual gifts to the people you love on special occasions in their lives.
Not only this, but people who you will not know (social workers, doctors) can start to make decisions about where you live, as well as your treatment and care. They might do something that you would not normally have consented to. Although it is good professional practice to include the family in any “best interest” meetings, they are not legally obliged to do so.
So if you don’t have a Power of Attorney in place, the only way your family can act for you is if they apply to the Court of Protection for a Deputyship. This is a complicated, expensive and intrusive process for your family.
It can take up to a year for the Court to grant a deputyship and it is very rare for them to do this for health and welfare at all: they will only decide at the point of a medical emergency rather than on an ongoing basis (unlike a Health & Welfare LPA).
So, why should you have those thoroughly nice people at Safeguarding Futures help you make an LPA?
In a word: EMPOWERMENT.
We put you in control of all decisions such as:
- Who you want as your Attorney(s)
- How to inform anyone who needs to know that you are making an LPA
- Information for your Attorneys so that they know what they can and can’t do in that role
- Ensuring your specific instructions are part of your LPA
- Discussing your preferences in terms of how you would like decisions about your finances and care made by your Attorneys if you could not make them yourself. This is useful so that your Attorneys can be guided by you in a letter detailing how you wish them to act in certain situations.
- We take all the admin strain and all at a fraction of the cost of a solicitor!
- Dating the documents in the wrong order (incurring extra registration costs)
- Unsure of what to do with the documents once they are received back and how to use them
- Unclear about the legal roles and responsibilities of donors and attorneys
- Not knowing what preferences and instructions should have been included on the forms
- Not knowing the difference between ‘jointly’ or ‘jointly and severally’ and choosing the wrong option for their particular situation
These are just a few of the regular issues we have queries about, which can end up being expensive mistakes for the donor in the long run.
I hope that this has made you think that putting an LPA in place isn’t as difficult as you imagined. If you would life any further information, please contact Steve on 07795 578700 or Melanie on 07904 480154.