It’s a common misconception that a spouse or child of an individual has the authority to take over should someone become incapacitated. This is simply not the case. The person concerned must make a Lasting Power of Attorney (LPA) authorising one or more individuals (their “attorneys”) to make decisions for them. Without an LPA, those wishing to act must make a court application, which is both time consuming and expensive.
A Lasting Power of Attorney is a long-term measure, where a person wants family or others to make decisions for them in the future. There are two types and you can make one or both. A property & financial affairs LPA authorises the “attorney” to deal with money and assets: managing bank accounts, paying bills, collecting state benefits/pensions or selling the person’s home (e.g. if they move into a nursing home). It can be used before a person has lost mental capacity (with their consent), as well as afterwards. A health & welfare LPA authorises the “attorney” to take decisions about things like personal care, medical care, moving into a nursing home and life-sustaining treatment. It can only be used after a person has lost mental capacity.
The legal process for making a LPA is relatively straightforward. The trickier part is often persuading a person of the need to do this. You can only make an LPA if you have mental capacity to make decisions, so it must be made before suffering an illness or accident that leaves the person without mental capacity.
If an elderly relative is reluctant to make a LPA, these points might help to reassure them. After making it, they can make changes to it or cancel it as long as they still have mental capacity. The individual making the Lasting Power of Attorney is not relinquishing their rights to make decisions themselves so they can still continue to make decisions regarding their finances and health and welfare should they wish to do so.
Perhaps the most important point is to ensure the person concerned has plenty of opportunity to discuss their wishes with those they appoint as “attorneys”. If parents or other elderly relatives want you to act for them, find out as much as possible about their financial affairs and their wishes. Do they want to live at home for as long as possible, or move into a nursing home? If they need to fund care costs and have surplus assets, which assets do they want to draw on first, and are there any they would hope to keep so they can leave them to family or friends in their Will? In the event of serious illness, are there circumstances when they would not want to be resuscitated or would want life support withdrawn? The more they can tell you about their wishes, the more comfortable they may be in making a Lasting Power of Attorney and the easier it may be for you, if the time comes, to make decisions for them.
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