There are 2 different types of Lasting Power of Attorney (LPA)

Lasting Power of Attorney – Health and Welfare (H&W)

.This is a separate document from the will. This is an important document that helps to protect your health and your welfare should you have a stroke or an accident or become mentally incapable at some point. The person appointed by you to make decisions regarding this can choose what medical treatment you receive and what day-to-day care you receive to ensure that you continue to get the best care possible even if you’re mentally incapable and cannot make those decisions for yourself. If you were mentally ill, you could decline much-needed medical care or daily care like bathing and washing.

Lasting Power of Attorney – Property and Financial Affairs (P&A)

This is a separate document from the Will. This is an important document that protects your estate, your finances and your property should you have a stroke or an accident or for any reason become mentally incapable at some point. Without this, there may be a lengthy and costly legal process. Bear in mind if this document is needed you will be ill at this point and your loved ones would be facing the emotional turmoil that this would cause and be wanting to care for you. The last thing they would want to add to their distress at this point would be legal fees and a lengthy legal process. This document helps to prevent that from happening. There are a number of circumstances that warrant considering having one of these documents but it is particularly recommended that you have this document in place if you are over the age of 50 and/or own property.

 HOW DO THEY WORK?

Property and Financial Affairs LPA:

Sample scenario: Mr and Mrs Jones own a property jointly together. They have an account each in their sole names and a joint account together. Mr Jones has a critical illness policy and provides the main income for the household. Mr Jones unexpectedly has an accident at work and is unfortunately left in a coma as a result. This is an extremely stressful and emotional time for Mrs Jones and to make it worse – Mr Jones never set up a Lasting Power of Attorney! Mr Jones’ income stops coming into the house because he can no longer work. He may be entitled to benefits but Mrs Jones is unable to claim them for him on his behalf, and if he is able to be granted them she will have no access to them. Their joint bank account may be frozen in line with the banking code of practice and she has no access to his sole accounts. He is entitled to claim on his critical illness policy but Mrs Jones cannot access the funds. She sees no solution but to sell the house or release equity from it – only to find she cannot do this either as she has no rights to do so. Why? This has all come about because her husband’s assets are being protected by the ‘Mental Capacity Act 2005’. This Act ensures he and his assets are not taken advantage of now he is in such a vulnerable condition, having lost capacity. His wife now faces a lengthy and costly court process. She will be limited in what she can and can’t spend, if she is granted authority at all to act on her husband’s behalf. - In real life scenarios people who have gone through this have stated ‘I wouldn’t want anybody to go through that, if they could avoid it’. How do you avoid this potential nightmare being a reality for your loved ones? – Set up a Lasting Power of Attorney!

Similar problems come about whether someone lives alone, is single, is in a partnership, is married, owns a property solely or owns it jointly. The fact is it creates a nightmare situation, at a time that is already hard enough to deal with. Everyone ideally should have a Lasting Power of Attorney!

Consider: If you become mentally incapacitated - How would your loved ones / your marriage mate cope? How would they pay the bills?

At a time when you’re needing caring for because you’ve become mentally incapacitated, without a LPA in place, your loved ones would also face the possibility that:

• Any joint bank account is frozen, so the joint co-owner has no access to these funds (banking code of practice says a joint account should be frozen if an owner becomes mentally incapacitated)

• No one is able to access any accounts in your sole name

• Accounts in your sole name (i.e. the telephone bill) are not able to be cancelled or altered as they would need the account holder.

• Your financial assets become frozen

• No one, not even a co-owner on a jointly held property, would be able to sell the house or release equity from it

• No one would be able to claim your critical illness policy pay out, even though you may be entitled to it

• No one can claim any government benefits you’re entitled to

• Your income likely stops coming in because you can no longer work.

Health and Welfare:

This version of the Lasting Power of Attorney is there to protect your health and your welfare, it’s there to protect you personally.

Sample scenario: Consider a family of 4. The family is made up of Mr and Mrs Wright (the parents) and Eva and Jack (the ‘of age’ children). Mr and Mrs Wright are in their 80s and have been married for over 50 years. Unfortunately, Mr and Mrs Wright are both struggling with their faculties and the children exercise their rights that they hold within Mr Wright’s Health and Welfare Power of Attorney where they have been appointed as Attorneys. After considering all the discussions they had with their father regarding his long term care, his preferences as noted in the LPA and discussed verbally and weighing that with the fact that it is not safe for Mr Wright to be at home any longer caring for himself, they decide to move him into a care home and opt for the one that he has requested in his LPA. Mum also needs care but unfortunately never made an LPA. Eva and Jack have no rights to decide where mum would live or what care she would receive. They feel she would be best being in the same care home as dad but the decision is not theirs to make. Social services will make this decision as mum cannot make her decision for herself due to the decline in her mental health. Social services do their best but they place her in a home 50 miles away, that would not have been her preferred option. She is suffering as she is separated from her husband for the first time in over 50 years and the children are struggling as they need to see dad in the morning and then travel 50 miles to see mum in the afternoon. They are not happy with the level of time and attention mum is receiving at this care home and want to move her but have no rights to do so. The only way they could take control would be if mum had made a Lasting Power of Attorney while she had capacity to do so. The only thing they can do is apply to the Court of Protection for a deputyship order and hope the court will grant this to them. This is another burden for the children to have to handle at this time. It is a lengthy and costly process. Eventually, after many court cases, much paperwork and much expense, almost a year later they are granted the deputyship order and can move mum but unfortunately she passes away just before they are able to do so.

If the mother had made a Lasting Power of Attorney as dad had, then in this scenario, the children would have been able to ensure that both mum and dad’s wishes were met. They could have placed them both in the same care home so they would be together and the family would have enjoyed mum’s last few months spending time together, rather than stressed and using precious time attending unnecessary court days.

Would you rather have people you trust, people you’ve named in a Lasting Power of Attorney making your health and welfare choices for you? These choices could include:

• Deciding where you live

• Day-to-day decisions including what you will eat or the clothes you wear

• Decisions about medical care and treatment you will receive

• Deciding when and where you will go on holiday

• Deciding what social activities you might participate in

You can place restrictions in these LPAs and/or offer guidance on what you would want or not want to happen in certain circumstances.

Don’t leave your loved ones any nasty surprises for the future; contact Candid Wills to help you step by step get your Lasting Power of Attorney in place, today!