Spring is here, and most people are thinking about just about anything you can think of… except for legal matters. We’ve already talked about the importance of drawing up a will. You’re going to be making provisions for your affairs after death. But what happens if something happens to you when you’re alive? The will doesn’t go into effect until after death. This means that you need protection while you are alive.
You must make sure that you go one step beyond the ordinary power of attorney and go with a lasting power of attorney. The difference here is that the regular power of attorney is dissolved in the event of mental incapacity. If something happens to you while you’re alive, that’s exactly the time that you need it most. Now, keep in mind that the Court of Protection does have the power to appoint people to manage your affairs when you can’t. However, this is a procedure that’s costly and very time-consuming. You also lose the right to choose who will have that responsibility. If the wrong person mismanages your affairs, then you’re really in deep trouble.
Don’t leave things to chance. You will need to go with a lasting power of attorney. Here’s what you need to know about them.
The first point is that when the power is given, the donor (you!) has to be capable of understanding the sheer power involved, as well as the effect. You need to have two LPA’s for your life — one to handle your property and affairs, the other to handle personal welfare decisions. The Lasting Powers of Attorney were created in 2005 by the Mental Capacity Act. This covers only England and Wales. The law provides a framework to deal with situations where adults really do lack the ability to make decisions for themselves. It also covers adults that have the ability to handle their own affairs, but they want to prepare for a time where they might not have the capacity in the future.
Both LPAs will be governed by an attorney that you appoint. The property and affairs LPA is so that the attorneys can handle the buying and selling of your home as well as any other assets. If there are taxes to be handled, they can handle that too. They will also be able to operate your bank and building society accounts, as well as claiming benefits on your behalf.
The personal welfare LPA is only when you cannot make decisions because you’ve lost the capacity to do so. It will cover your living accommodations, medical care, and consent regarding medical treatments. Diet and dress are often involved in an LPA — remember that under these circumstances, you would not be able to take care of yourself.
The new legislation has introduced a person known as “the certificate provider”, either someone who knows you well or a professional person. The certificate provider must sign the form to confirm that they have discussed the contents of the LPA(s) with you on your own (if possible) and that they can state that you understand the purpose and scope of the LPA, no undue pressure or fraud is involved in the decision to make an LPA and there are no other factors preventing the creation of the LPA.
It sounds like a very heavy thing, and it definitely is. You need to make sure that you seriously have considered the grand power of such a document. If this is something that you’re not comfortable with, don’t go into it. However, if you know that you want to have all of your bases covered, this is the perfect document for you.
You want to make sure that you register both types of LPA before it can actually go into effect, while you still have mental capacity.
The Court has a role in the LPA as well — they need to determine the validity of the LPA, as well as the mental capacity established and the registration of the LPA itself.
Your attorneys will be heavily involved in this process. This isn’t a process for an attorney that you really don’t trust. Keep in mind that if your attorney isn’t ready to commit themselves that deeply, they can indeed submit to the court their feelings on the matter and reject the inclusions.
Having clear communication between all parties involved is absolutely essential. Good luck!