Have I thought about a Lasting Power of Attorney? I thought that was only for the very old

By Victoria Green, Ashfords LLP. Published 2020-04-10
BOLD-Living
Ashford’s provide some sage advice on the need to set up a Lasting Power of Attorney

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As a nation we are living longer, which means that historic assumptions of the age at which people are defined as 'old' may now be outdated. Even if there is even that tag anymore.

Whether we accept we might be ageing is of course a personal decision and as our increased life expectancy can be linked to more active and healthy lifestyles, we may not consider that we bear any of the hallmarks of 'old age' despite the number of years on the clock. 

If you ask the average 65-year-old if they considered that they were 'old' (an age traditionally associated with becoming 'elderly'), you would, most probably, and understandably, be greeted with a resounding 'No'!

But despite our potential reluctance to give in to the hands of time in terms of defining our age bracket, it is apparent that the incidence of disability and cognitive impairment increases with age, and therefore however 'well' we may feel, our chance of developing some form of cognitive impairment, it does increase over the years.

As none of us have a crystal ball to be able to look into the future, to see when, if at all, our own cognitive ability were to be effected, we would recommend that consideration is given to putting in place a lasting power of attorney before we 'get old'.

All too regularly we are contacted by individuals who want us to assist in putting in place a Lasting Power of Attorney (LPA) for their relative due to a recent diagnosis relating to cognitive impairment.

Aside from the fact that any decision to put a LPA in place has to come from the 'donor' of the power, rather than their relative, unfortunately, once a person is no longer regarded as having sufficient capacity to understand the nature and effect of a power of attorney or provide instructions, we cannot assist.  This is because having capacity to provide instructions and understand the effect of the power of attorney is a precursor to instructing us to draft the same.

If a person is no longer mentally capable of managing their affairs and does not have a LPA already in place, then the route that the relatives, or those wishing to assist the incapacitated person, have to follow to be able to assist with the management of property and financial decisions, is a Deputyship Order through the Court of Protection to be appointed as Deputy.  The problem here is that the Order can take many months to be granted by the Court, during which time the prospective Deputies only have a limited power to deal with that person’s financial affairs.

Had that same individual executed a LPA, prior to a loss of mental capacity, then, provided the LPA had already been registered at the Office of the Public Guardian, the attorney's appointed within that power would be able to immediately start to attend to the management of the donor's affairs.

Of course, a diagnosis of cognitive impairment does not automatically mean that an individual is no longer capable of managing their own financial affairs, or able to provide instructions to execute a LPA. 

However, receiving news of this diagnosis can be a distressing time for all concerned and understanding and acceptance of the diagnosis may be difficult for the individual.

Sometimes the individual is reluctant to acknowledge what may lie ahead, or simply be frightened by the unknown.  Having already had the rug pulled out from underneath their feet, in terms of how they regarded their life ticking along, they may not feel inclined to be agreeable to allowing anyone else to help manage their financial affairs, as they might regard this as a further erosion of their independence.  This is despite the fact that they are still in a position where they could decide to execute a power of attorney.

Therefore, discussing whether it is appropriate, in your circumstances, to execute a power of attorney would be better before any emotive circumstances were to arise, irrespective of whether you consider you are 'old' enough.  This approach would give all concerned, both you and those that you would wish to act as your attorney, the ability to take considered decisions, in connection with your instructions and allow time for all parties to obtain a proper and thorough understanding of the nature and effect of the document.  We would contend that this is preferable to executing a LPA as a knee jerk reaction, or leaving it too late!

There are two types of Lasting Power of Attorney - one relating to Property and Financial Affairs and one relating to Health and Welfare matters. 

Whilst many can see the benefit of having a Lasting Power of Attorney in connection with your Property and Financial Affairs, sometimes, where there are next of kin, it is hard to understand the need for a Health and Welfare power of attorney.  However, we are increasingly finding that many residential and nursing homes now request sight of a Health & Welfare Power of Attorney on admission.  In addition should you be mentally incapacitated and your next of kin/ close friend etc wishes to query any assessment of your needs for the purposes of obtaining NHS Continuing Healthcare and NHS funded nursing care, the NHS Continuing Healthcare Practice Guidance are currently states that it is only those who are appointed under a Health & Welfare power of attorney who can become involved in this.  Whilst this requirement is questionable, in the event of challenging a decision regarding funding, the absence of a Health and Welfare power of attorney would mean that there is one more hurdle to overcome and is again a reason for individuals to consider appointing both Property & Financial and Health & Welfare Lasting Powers of Attorney.

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