This article was first published in the Somerset County Gazette on Friday 25th April 2014. To view the article online, please click here.
It's a myth that Wills must begin with these words. You are assumed to be mentally competent and the law requires that anyone who suggests otherwise must prove it.
But what happens if you suffer an illness or injury that affects your ability to reason and make decisions?
You might assume that if your reasoning is impaired your spouse or closest relatives could step in and make decisions for you, but they have no status in law.
They cannot sell your home or access funds held solely in your name. More surprisingly they have limited rights to say where you should live or the medical treatment you should receive.
As long as you are 'of sound mind' you can set out who has the legal right to make decisions for you if you lose capacity by completing a Lasting Power of Attorney (LPAs).
Of course, you might be fortunate enough never to need an LPA. Unlike a Will (which every adult should have - sadly we will all die one day!) not everyone needs an LPA. An LPA is like insurance - you should think about what might happen if you don't have one:
- If you are young with few responsibilities it is unlikely you need an LPA. It is probably only appropriate if you are at risk of losing capacity, for example as a result of illness or if you take part in dangerous sports.
- On the other hand, once you are over 80 years of age there is a one in six chance that you will develop dementia, so seriously considering an LPA is appropriate. If there was a one in six chance of your house flooding you would get insurance!
There are two types of LPA:
- Property & Financial Affairs (to deal with your money and possessions)and
- Health & Welfare (to deal with lifestyle and care issues)
You can appoint anyone you want to be your attorney (as long as they agree) and you can appoint more than one person, or people, to take over the role if needed. You can also limit their powers or give them guidance.
An LPA doesn't have any force until it is registered with the Office of the Public Guardian. That costs £110.00. An LPA can be registered immediately or once it is needed. You can also cancel an LPA if you change your mind.
You can create an LPA yourself by going to the Government's website (https://www.gov.uk/power-of-attorney/overview) however, many people find the forms a bit intimidating and seek help to complete them.
If you decide to use a firm of solicitors to help you, the cost should be in the range of £200-£400 +VAT per LPA depending on whether you register it immediately.
Why You Should Have an LPA
Wills deal with what happens to our stuff when we die, but LPAs deal with what should happen before we die. As life expectancy increases so does the likelihood that we will spend some time without capacity in our final years. An LPA will help your family plan for and deal with that period with as little distress as possible.
Choose Your Attorney Wisely!
Unless you've specified otherwise, your Attorney can do almost anything you can. If you choose the wrong person you could go into temporary care for a few weeks and come back to find your house has been sold!
If you do not have close relatives you may want to make sure that friends end up making decisions for you. You may have close relatives but want to guarantee they do not end up making decisions for you!
Talk About it
You can give your Attorneys guidance or limit their powers within the LPA, but the best way to prepare is to chat to the people you appoint. It's a difficult subject to discuss but you'll help your Attorney by talking about what you would like to happen if, for example, you went into a nursing home.
Don't Leave it Until it's Too Late
J did not put an LPA in place. She developed dementia and after a fall was admitted to hospital.
When it came time for her to be discharged J's son wanted to move in with her and care for her in J's home.
J's daughter did not agree with that proposal. She didn't think her brother would be able to care for J properly and thought he was motivated by the fact he could live there rent free.
J's children had to apply to the Court of Protection for a Deputyship Order, and there were significant costs and delays before J's daughter was eventually given the authority to make decisions for her mother.
Keep it Safe
If you have an LPA make sure it is kept safe. Ashfords will store it for you for free and we'll make sure it is only released on your instruction or if your doctor has confirmed you have lost capacity.