Lasting Power of Attorney — Don’t leave it too late

20 October, 2010

This is just a quick word to encourage anybody reading to take a moment to consider whether you should be taking steps now to obtain (or grant) a Power of Attorney, to guard against finding yourself (or your relatives finding themselves) without one when you (or they) desperately need it.

There comes a stage in all of our lives when we’re no longer capable of making important decisions for ourselves. For some people that only happens right at the end, but increasingly this is becoming an issue for those of us with ageing parents suffering from dementia, many years before our parents are likely to die.

The Lasting Power of Attorney (LPA) provisions exist so that a person (the Donor) who still has the mental capacity to do so is able to grant to one or more trusted people (the Attorneys) the power to make important decisions that the Donor would usually make for himself, once the time comes at which he no longer has the capacity to make those decisions. Lasting Powers of Attorney were formerly known as Enduring Powers of Attorney.

There are two different types of LPA. One relates to property and financial affairs, and the other to health and welfare. The first enables Attorneys to manage and make decisions about property and finance, and the second enables the Attorneys to make decisions about a whole range of issues, such as where the Donor should live, medication and life-sustaining treatment.

NB: it is, in fact, possible to appoint a property and finance Attorney to manage your finances for you even at a time when you still have the capacity to manage them yourself, but health and welfare LPAs can only be used once the Donor has reached the stage at which he/she lacks the mental capacity to act for him/herself.

Because there’s a potential for unscrupulous people to try to take advantage of an LPA, there are various safeguards written into the relevant legislation for the benefit of the potential Donor. The most significant of these is that at least one independent person (the Certificate Provider) must be present during the grant of the LPA, and must be willing and able to certify that at the time of granting it the Donor understood what the LPOA was, and the authority he was granting to his Attorneys, and that he had not been pressured into granting it.

The Certificate Provider does not have to be a doctor, lawyer or other relevant professional– he/she can simply be a person who has known the Donor for at least two years as more than simply an acquaintance–and so the grant of an LPA is a fairly simple process while the potential Donor is still firing on all cylinders.

However… because the first signs of dementia aren’t always recognised for what they are, and also because it’s upsetting and confusing for all concerned when a parent begins to lose the ability to act rationally and independently, it’s all too easy for a family to fail to act, and then to find that by the time they actually need an LPA (possibly to deal with the bank, or possibly in order to ensure that medical professionals and social workers take account of their views) there is an issue about whether or not the parent still has the necessary mental capacity to grant one: possibly because there has been a dementia diagnosis, or maybe just because the person in question has begun to act in a confused manner.

At that stage it becomes necessary for an independent person with relevant professional skills (like a doctor or lawyer) to attempt to make an assessment of whether the potential Donor has the necessary capacity. That can be expensive, and–trust me on this–it is an extremely stressful process. If the person making the assessment concludes that the potential Donor lacks the necessary mental capacity then it is too late for an LPA to be granted, and it may then become necessary for those who would otherwise have been appointed Attorneys to apply to the Court of Protection (think expensive, stressful, long-winded…) in order to be granted authority to act on behalf of their parent.

My sister and I first went through this with our mother two years ago, because until 14 days before she died of cancer none of us had known that she was even ill. She didn’t suffer from dementia, but within the space of less than a week she became too ill to sign her name. We thought we’d learned a few important lessons there, but sadly we’ve just had to go through the whole agonising process with our father too, for reasons too complicated to go into here in detail but which involved medical and social care professionals entirely failing to consult us in relation to an issue that had the potential to be extremely damaging and upsetting to our father.

Fortunately we have a family friend who is also a doctor, and he’s known Daddy since before we were born. He was able to see past Daddy’s dysphasia and conclude that he did understand what we were asking him to do, and that he wanted to do it, and so we have our certificate of capacity. Now we simply have to go through the process of registering the LPA (for Health & Welfare, in our case), which should be straightforward. It’s still likely to take a couple of months, though, and just at the moment we would prefer to be able to be able to produce the registered LPA to the medical and social care professionals right now, to prevent them from attempting to bypass us again.

I hope that any of you who haven’t already made provision for an LPA in respect of your parents (or in favour of your children, partners or trusted friends) will learn from our mistakes and go over to the Office of the Public Guardian (OPG) website right now and download the necessary documents. The Property and Financial Affairs documents are here, and the Health and Welfare documents are here.

You can take the forms to a solicitor, of course, but as long as the person who would be granting the LPA is still quite obviously thinking clearly that really shouldn’t be necessary, for anybody switched on enough to be reading blogs on the internet. There’s no complex legal jargon in the documentation, and the forms are simple enough to fill in, albeit a little long-winded. You do need to be sure to carefully read the rules about who can perform what roles (note in particular the rules about appointing persons to be notified when an application to register the LPA is made: nobody appointed to perform that role can also be an Attorney or Replacement Attorney, and if a mistake is made then the OPG will refuse to register the LPA). Just take your time reading through the Guidance, though, and you’ll be fine.

When this is all sorted with Daddy my sister and I are each going to make LPAs in favour of the other. It’s perfectly fine to do it long before you expect to need one, because the deed doesn’t take effect until the Donor has lost the capacity to make the decisions in question. Better safe than sorry.

If anyone does download the stuff and finds themselves confused about any part of it, don’t hesitate to drop me a line. I should be able to help.