Imagine becoming so ill you were no longer able to make decisions. Give a trusted family member lasting power of attorney and they’d be able to act for you at a difficult time instead.
When might you need a lasting power of attorney? You could have an illness that makes performing everyday tasks harder. Or perhaps you’ve been diagnosed with dementia, limiting your mental capacity. Let’s explore what lasting power of attorney is and the circumstances in which you may need it.
What is the definition of mental capacity?
Mental capacity is defined as a situation where a person can make or communicate decisions autonomously. However, the individual must also:
(i) be able to understand why they made their decision
(ii) recognise why they chose that course of action
(iii) recognise what the outcome of their choice might be.
Does this mean someone who can’t choose a meal from a menu needs lasting power of attorney? No, needing additional time to understand or communicate something doesn’t mean a person lacks mental capacity. Indeed, even if they were struggling to explain their decision, attempts should be made to help them.
The Court of Protection explained
If you do lose the capacity to make choices or communicate with others and don’t have a lasting power of attorney the Court of Protection may need to be involved. This would be the case even if you were married or in a civil partnership.
The Court would assess your ability to make decisions and, if they felt your capacity was lacking, authorise a deputy to act on your behalf. This individual is normally appointed by the Court. However, a loved one could apply in which case the Court would assess their suitability.
The three types of power of attorney
Power of attorney is classified into three groups, although you can choose more than one.
Lasting power of attorney (LPA)
LPAs can only be invoked if you lose mental capacity or decide you can’t make decisions. Its scope is limited to health, care, and your financial affairs. It is the better choice if you want to protect your future.
Ordinary power of attorney (OPA)
An OPA can be instructed while your mental capacity is sound and is restricted to decisions about your financial affairs. If you needed to go to a hospital for a short period or wanted to take a prolonged break, you could ask a trusted family member or friend to act on your behalf.
Enduring power of attorney (EPA)
In October 2007, EPAs were abolished and replaced with LPAs. However, if yours was signed before this date, it should still cover decisions concerning your financial and property affairs.
Financial versus health and care decisions
Lasting power of attorney spans financial and health and care decisions.
Health and care decisions
A health and care LPA could cover:
– Any activities that you partake in
– Your day-to-day medical care
– The foods you consume
– Ongoing medical care
– Life-saving treatment
A financial LPA could cover:
– Ensuring mortgage payments are met
– Organising home maintenance
– Selling or buying your property
– Making investment decisions
You don’t have to give your solicitor control over all these areas. Instead, you can limit the actions they make on your behalf.
Need some further guidance?
Then speak to one of our experts. We can help with power of attorney, making a will, and trusts. We’ll use our knowledge and experience to make a decision that’s in your best interest.