Are Your Affairs In Safe Hands If You Lose Mental Capacity?
We all have the right to make decisions about our own personal affairs, but sometimes due to either illnesses or accidents, we lose the ability to so.
Unfortunately, if you lose mental capacity, you can’t assume that relatives can simply access your financial affairs or make decisions about your healthcare. Your loved ones may have to spend time and money going through court to gain access or control.
However, you can avoid this by giving a friend or family member Lasting Power of Attorney.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document where someone nominates a trusted friend or relative to look after their affairs if they lose mental capacity.
There are two different types of LPA:
Property & Affairs LPA – The nominated individual will be given access to any specified financial or property dealings.
Health & Personal Welfare LPA – the nominated individual can make decisions over day-to-day healthcare and medical treatments.
Who should set up an LPA?
Regardless of health or age, everyone should consider setting up an LPA. It’s not necessarily dementia in old age that will affect your ability to make decisions. Young people could lose capacity through and accident for example.
Others diagnosed with a condition likely to cause loss of capacity should consider who they would like to make their important decisions when they are no longer able to.
It’s very important that you should also have full capacity when appointing an attorney. When making a Power of Attorney in England and Wales, a ‘certificate provider’ decides if you’re capable of making that choice. This can be someone you’ve known for at least two years or someone with relevant professional skills such as a doctor, lawyer or social worker.
How Is Mental Capacity Defined?
It’s important to understand that living with a mental health condition such as depression, bipolar or schizophrenia, doesn’t necessarily mean someone lacks capacity.
The Mental Capacity Act 2005 says a person is unable to make a decision if they can’t do one of the following: understand information relevant to a decision; retain that information long enough to make the decision; use or weigh that information; or communicate the decision.
The full definition can be found here.
How do you set up an LPA?
The specialist team at Curtis Parkinson can guide you through the process of creating an LPA. You can appoint one or more representatives to act for you, and can determine how they work together to make decisions on your behalf.
Any person who is trusted with power of attorney over your financial affairs, will not necessarily have control over decisions about your care. You will need to have both legal documents set up (Property & Affairs and Health & Personal Welfare) to ensure each area is covered, whether that’s by the same person or two different individuals.
Whilst there is a cost involved in setting up an LPA, it’s important to remember that it will prevent future expense should you ever need to call on someone to make an important decision on your behalf.
What if someone has already lost capacity?
If you do not already have a Lasting Power of Attorney it may be necessary to apply to the Court of Protection to appoint a deputy. If you lose capacity for any reason (which includes as a result of an accident or illness) the deputy will be able to make decisions on your behalf.
It’s worth pointing out that going through the Court of Protection can be a long and expensive process and one which can lead to disputes between family members. It may also be that the deputy chosen for you by the Court does not reflect your wishes.
Naturally, preparing for the future can be a confusing and sensitive area. If you have any questions that aren’t covered here, contact Curtis Parkinson today to see how we can help.
Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.