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Have a Plan for Mental Incapacity!


Have a Plan for Mental Incapacity

Did you know that every three minutes in the UK a person develops dementia?  Most people know someone or have been affected by dementia in the UK, yet we still fail to plan ahead.

No one has the right to access your money, even if it is to pay for care.  You, therefore, need to plan to ensure that your family can gain access without having to go to the Court of Protection, which is a lengthy, daunting and expensive process.  Don’t put your family through this and plan ahead with a Lasting Power of Attorney.

What is a Lasting Power of Attorney?

A Lasting Power of Attorney is a legal document that allows you to choose a person or persons that you trust to make decisions for you when you are not able to. This i show Wikipedia defines Lasting Power Of Attorney.

Why do I need a Lasting Power of Attorney?

If you cannot make a decision, then your family will have no legal right to help, support or assist you without a Lasting Power of Attorney.  They would have to apply to the Court of Protection to help you and this is very time-consuming and costly and can be very restrictive.

By planning ahead and making a Power of Attorney it will allow your chosen family members to step in and help you when you most need it.

I have a Will, does this not cover me?

A Will is a legal document that only speaks on the death of a person and therefore has no involvement should you lose mental capacity.  The only way to appoint someone to manage things for you in life is a Lasting Power of Attorney.

Which type of Lasting Power Attorney do I need?

There are two types of Lasting Power of Attorney, and these are;

Property & Financial Affairs

This allows the person or persons that you trust to make decisions about how to spend your money and manage your property and investments in your best interests.  It will allow them to pay your bills and claim any income or benefits that you are due to.  It will also allow them to buy and sell property for you.

Health & Welfare

This allows the person or persons that you trust to make decisions about your personal welfare and healthcare.  It will allow them to decide where you live, your daily routine, what type of care you receive and medical treatment which can include giving or refusing consent for life-sustaining treatment.

Who can I appoint as my attorney?

You need to think very carefully about who you appoint as your attorney.  Your attorney must be someone you deem to be responsible, trustworthy and have the correct skills and thought process to make difficult decisions in your best interests.

Your attorney has to be over 18 years of age, not bankrupt and able to handle complex decisions and manage money carefully.  An attorney can be a family member, a trusted friend or a professional such as a Solicitor or Accountant who specialises in acting as a professional attorney.

You can appoint multiple people to act and you can appoint replacement attorneys should your original be unable to act, for any reason.  If appointing multiple people you need to ensure that they get along and can work together and share the thought processes you support.

Can I change my Lasting Power of Attorney?

Whilst you have the mental capacity to do so, you can cancel your Lasting Power of Attorney at any time.  You are always in control.

If you want to change the attorneys, then you will need to cancel the Power of Attorney document and make a new one.

How long does the Lasting Power of Attorney work?

If the Lasting Power of Attorney is not cancelled then it will last your whole lifetime, until you die.

How do you use a Lasting Power of Attorney?

A Lasting Power of Attorney can be used when you are ill, injured, abroad, or when you are too busy to deal with matters yourself.

An attorney would take the Lasting Power of Attorney document to the organisation that they need to speak with and enact any decisions.  We also now have an online account through the .gov.uk website that allows organisations to access the Power of Attorney remotely, so to allow them to speak with an attorney using the Power.

A Lasting Power of Attorney is governed by English and Welsh law and therefore is active in England and Wales.  However, it is increasingly being recognised by other countries.

When can my Attorneys act?

Attorneys can act in most cases as soon as the Lasting Power of Attorney has been registered at the Office of the Public Guardian.

The Health and Welfare Lasting Power of Attorney is limited, in that the attorney can only make decisions when the donor lacks capacity.

The Property & Financial Lasting Power of Attorney may in some cases be limited to allow the attorney to only make decisions when the donor lacks capacity, but in most circumstances, it may be left open to be used immediately upon registration.

We can help to plan and set up your Lasting Powers of Attorney, give us a call today!

Ginette McCaffery – Wills, Probate & Trusts Specialist Solicitor

Dated: 01.08.23

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