Discussing what should happen in the event that we lose capacity to make or communicate decisions is an uncomfortable prospect, However, avoiding the conversation could result in huge difficulty and upset for our family and friends.
Many assume that if you were to lose mental capacity then your partner or your children would automatically step in and make any urgent decisions regarding your finances or health on your behalf. This is not the case. Unless you have made a lasting power of attorney (LPA) then no one has the authority to make decisions for you. This could result in your bills going unpaid or the cost of any future care having to be met by your family whilst your accounts are frozen and cannot be touched. Lots of people jointly own their homes, which is problematic if there is no LPA in place, joint assets cannot be transferred or sold without the consent of the court of protection. Finally, your family does not have the right to make any medical decision on your behalf, which can be hugely distressing.
If you were to lose capacity without having arranged an LPA the court can appoint someone to act on your behalf, this person is called a ‘deputy’. A deputy has the authority to make urgent decisions for you however, the extent of their decision making powers are far less than that of a person nominated under an LPA. Anyone over the age of 18 can apply to become your deputy, alternatively, the court of protection can appoint someone or nominate the local authority to assume the role. Applying for a deputyship is far more costly that arranging an LPA, for which there is an annual fee which must be renewed in order to maintain the position. In addition, there is a far greater risk that your wishes are not as accurately reflected in the decisions of a deputy, than if you were to have appointed someone to act in accordance with your LPA.
When making an LPA the person you appoint to make decisions on your behalf is known as an ‘attorney’. An attorney will have the responsibilities specified under the LPA, as well as a legal obligation to act in your best interest and to take reasonable care when making decisions on your behalf. Your attorney will only ever make a decision for you if you are unable to make that decision for yourself at the time it needs to be made. This means that if you regain capacity, for example, wake from a coma, you also regain the right to make your own decisions.
More than one attorney can be appointed under an LPA and you can specify whether you would like all or only certain decisions to be made jointly or jointly and severally. A joint decision would require the agreement of all attorneys. If decisions are to be made ‘jointly and severally’ an attorney can make a decision on their own or together with the other attorneys. Having more than one attorney may reduce the level of pressure on the appointed, as well as helping you to feel reassure that thorough consideration is given when making decisions.
The appointment of an attorney does not have to be final, you can change your mind and revoke the rights of an attorney prior to losing capacity if you wish to do so. There are also a number of circumstances where your attorney is required to stop acting if it becomes apparent that it is not in your best interest, for example, if an attorney is made bankrupt. An attorney should be someone reliable and trustworthy, a member of the family or a close friend.
At Grant Stephens family Law we are able to draft and arrange LPA’s for finance and property as well as LPA’s for health and wellbeing. If this is something you have considered or would like to explore further please do not hesitate to contact us. We are happy to help advise and assist wherever possible.