Have you thought about A Lasting Power of Attorney?

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we are living longer, which means that historic assumptions of the age at which people are defined as 'old' may now be outdated.

Whether we accept that we might be ageing is of course a personal decision; 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 themselves to be 'old' (an age traditionally associated with becoming 'elderly'), you would most probably, and understandably, be greeted with a resounding 'No'!

But despite our 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. Therefore however 'well' we may feel, our chance of developing some form of cognitive impairment does increase over the years.

As none of us have a  crystal ball to be able to look into the future and see when, if at all, our own cognitive ability were to be affected, 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,  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, unfortunately 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 relatives, or those wishing to assist the incapacitated person, have to obtain a Deputyship Order through the Court of Protection to be appointed as Deputy, in order be able to assist with the management of property and financial decisions.. 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 persons 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 start attending to the management of the donor's affairs immediately.

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 is simply 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 allow 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 make 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!

If you would like to discuss Lasting Power of Attorney with our Trusts & Estates Team then we would be pleased to meet with you.