Whatever your age, there is always a chance that you could lose mental capacity – whether through illness, an accident, a learning disability, or even substance abuse – and this might leave you unable to make decisions for yourself.

If this happens to you, it would be nice to think you could have a say in how you are looked after and how your affairs are managed. Matthew Cooper, a Partner in the Private Client team at WBW Solicitors in Paignton, looks at the ABC of why having a lasting power of attorney is one of the best ways of achieving this is.

A for Attorney

A lasting power of attorney is a legal document which allows you, the donor, to appoint one or more individuals to serve as your attorney and indicate how you would like things to be managed while you are out of action. You can include any guidance and restrictions on your attorney’s powers that you think are needed.

There are two kinds of lasting power of attorney:

  • A health and welfare lasting power of attorney – this allows your attorney to make decisions on everyday issues such as what you eat and wear, plus more pressing issues such as the medical care you receive, where you should live and whether you should receive life-sustaining treatment.
  • A property and financial lasting power of attorney – this empowers your attorney to manage concerns such as overseeing your bank accounts and investments, paying your bills, applying for benefits, and buying and selling property.

You can choose anyone to be your attorney as long as they are over 18 and have mental capacity. In the case of a property and financial lasting power of attorney, they may not be bankrupt or subject to a debt relief order.

B is for your best interests

Any decisions made for you must be made according to the statutory principles contained in the Mental Capacity Act 2005. These are:

  • Your attorney can only make decisions for you if you are unable to make them for yourself. You will be assumed to have capacity unless it is proved otherwise.
  • They have a responsibility to encourage you to make your own decisions where possible. This should be decided on an issue-by-issue basis because on some days and on some issues, you may be able to decide for yourself, while on some days and issues you may not.
  • Just because you make what appears to be an unwise decision, this does not necessarily prove that you lack mental capacity.
  • An attorney acting on your behalf must only make decisions with your best interests in mind.
  • Any action taken or decision made on your behalf should cause minimum restrictions to your basic rights and freedoms.

C is for Capacity

Lasting powers of attorney were introduced by the Mental Capacity Act 2005, which also outlines the tests that should be used to gauge whether you have lost mental capacity.

Your attorneys will generally apply these tests, however, your doctor or another medical professional might be called upon for more complicated decisions, such as consent for surgery.

C is also for Court of Protection

If you do not have a lasting power of attorney in place and you lose mental capacity, you will have no say in how you would like your affairs to be run.

Instead, a loved one would need to apply to the Court of Protection for a Deputy Order, which allows the court to appoint a deputy to look after your affairs and set out the powers said deputy will have.

A friend, neighbour or family member can apply to become a deputy themselves, failing that, a fee-charging professional would be appointed as your deputy to manage your affairs, so it is considerably more expensive than registering a lasting power of attorney.

This procedure can take many months, and in the meantime, you may be left in the problematical situation of being unable to manage your finances or make important decisions. It may be that social services will appoint a professional (such as a solicitor) to act as a temporary deputy to manage your affairs until the Court of Protection comes to a decision. This, of course, would only add to the costs.

How we can help

Being an attorney can involve a lot of time and sometimes stressful decision-making. An attorney can also be held financially liable if they fail in their legal duties, plus they would be open to criminal charges if they ill-treat or neglect you.

Since you are allowed to appoint more than one attorney, you can keep costs down by appointing a professional attorney alongside a friend or family attorney. You could state in your lasting power of attorney that your non-professional attorney should manage your day-to-day affairs, but they can call on the professional for help when required.

Other benefits of having more than one attorney – and you empower them to make decisions individually, as opposed to having to make them jointly – is that decisions can still be made if one attorney is not available, and the lasting power of attorney will endure if one of your attorneys passes away.

If you would like to register a lasting power of attorney, you should seek advice from one of our specialist solicitors, who can help you formulate a bespoke and legally binding document which accurately reflects your needs and wishes.

We can help you select appropriate attorneys (or even act as a professional attorney for you) and assist you in deciding what powers your attorneys should be given and the restrictions you would like placed on them. We will also ensure that it is drafted in a legally valid manner and is properly registered.

For more information on lasting powers of attorney or any other private client issue, contact Matthew Cooper at WBW Solicitors in Paignton on 01803 546104 or email matthewcooper@wbw.co.uk.

WBW Solicitors has offices in Axminster, Bovey Tracey, Brixham, Chard, Exeter, Exmouth, Honiton, Launceston, Newton Abbot, Paignton, Seaton, Sidmouth, and Torquay.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.