Wilson Browne discusses… falling ill

Before the opportunity arises for you to fall ill or have an accident, it is important to consider what you would do if those circumstances would arise. The best and most important way to protect yourself and your loved ones would be to arrange to have a Lasting Power of Attorney (LPA) put in place.

There are two types of LPA; Property and Finance and Health and Welfare and it is every lawyer’s view that each type is as important as the other. An LPA is a legal document that allows you to appoint someone to act on your behalf if you are physically or mentally incapable of making certain decisions. The person or people so appointed are referred to as your Attorney’s and they must follow the principles of the Mental Capacity Act 2005 and have regard to the Code of Conduct. Decisions that your Attorney’s make must be made in your best interests and can only be made either with your consent (in the case of your Property and Finance) or if it has been proved by a medical professional that you no longer have capacity to make your own decisions.

Property and Finance

You have the ability to appoint your Attorney to act in respect of your property and finances as soon as the LPA has been registered. This means that even if you have the capacity to make your own decisions, you can provide your Attorney with authority and your consent to deal with these matters on your behalf. This may include paying your bills, drawing cash out of your account, and selling your property. If you were physically unable to do these things yourself, then you can authorise your Attorney to deal with it on your behalf. If you are proven to lack capacity, then your Attorney’s must have regard to ensuring that the actions they take are in your best interests.

Health and Welfare

There is no option for your Health and Welfare LPA to be used as soon as it is registered and instead can only be used as and when it is proven that you lack capacity. There is a common misconception that you must have a type of dementia for you to not be considered to have capacity, but if you were to be in a coma and therefore not able to make decisions concerning your own healthcare, then you would lack capacity and your Attorneys could step in. The Health and Welfare LPA will allow your Attorneys to make all decisions in relation to your healthcare and your additional needs including where you live and importantly in relation to any life sustaining decisions that may need to be made on your behalf.

On the basis of the above, it is vital that you appoint people that you trust to be your Attorneys and have the discussions with them about what you do and don’t want in the future if you were to lose capacity.

You may feel as though you want to get your affairs in order and reviewing or making a Will is a good idea and considering whether your life policy and pension nominations are up to date.  It is worth reviewing your provisions with your solicitor and your financial advisers.

From a conveyancing point of view perhaps very little needs to be considered. If your income drops as a result and you are struggling to meet your mortgage repayments, contact your lender as soon as possible.

You may need to adapt your property or move to one that is more suitable for your needs.

Sometimes an illness or an accident can catch you unprepared and a loved one may not have put a power of attorney in place or may no longer have capacity to do so.  In these circumstances you may need to make an application to the Court of Protection for a deputyship order so that the court can authorise you to manage the property and affairs of a loved one.

The Court will want to know what assets and liabilities the person has; what authority you need; who has an interest in their affairs and that they have been assessed as no longer capable of managing their own property and affairs by a registered medical practitioner; social worker or independent assessor.  You will need to give undertakings to the Court that you will act in the best interests of the person and you will be required to put a security bond in place to protect the persons assets should something go wrong.  The process unfortunately can take several months to complete.

The Court Order will provide what authority the deputy has and may restrict these powers without further authorisation from the Court such as selling or buying property.

In relation to health care decisions the Court are reluctant to issue Health & Welfare deputyship orders and rely on the provisions in law that the people in charge of the persons care are able to make health and welfare decisions in the best interest of the person.  This would be the doctors; consultants; nurses; health care professionals; care providers and social workers carrying out the care depending on the type of decision to be made.  There is a duty for family members to be consulted but the decision making is carried out by the people carrying out/commissioning that care.

Assessing capacity at the earliest stage is vital to establish if a Power of Attorney can be made or whether a Court application is necessary.

In circumstances where a person is only in receipt of benefits or state pension a full deputyship order may not be required and an application to the DWP could be made to become an appointee.  This enables a family member or loved one to receive benefits on behalf of the person to utilise on their behalf.

Acting as an Attorney or a Deputyship has many responsibilities and challenges and you may find you need advice in relation to those duties such as, the scope of your authority; care funding questions; conflicts of interest; carrying out your responsibilities to the Office of the Public Guardian.  Seek advice to ensure you are protecting the person you are acting for and yourself so that you are not personally liable for any wrong doing.