Who will take care of you in the future?

Updated: Thu, 01 Apr 2010 16:29:54 +0000 by alsters456

We don’t like to think that we may one day become incapable of managing our property and financial affairs or personal welfare. But, warns Tanya Ghuman – solicitor and specialist estates expert at law firm Alsters Kelley – you never know when physical or mental incapacity may strike.

"Many people think Powers of Attorney are only necessary for people with dementia-related illnesses. However, what would happen if you were hospitalised because of an accident or became suddenly mentally and physically incapable of handling your affairs because of a stroke?

"It is important for people to recognise that it isn’t only the elderly who suffer from mental or physical incapacity,” she explains.

The new Lasting Power of Attorney (LPA) is governed by the Mental Capacity Act of 2005 and replaces the old Enduring Powers of Attorney (EPA).

Tanya advises that putting an LPA in place is just as important as making sure you have a legally valid and up-to-date Will:

"An LPA is a legal document which allows you to choose a friend, relative or professional whom you trust to act on your behalf if you are unable to take care of your finances or your personal welfare.”

Tanya explains, "when you make a Will, you ensure that there is always someone to manage your affairs when you die so why not make similar provisions while you are alive?

"As such, whoever you choose will be able to make sensible decisions about your property and financial affairs or healthcare and personal welfare at a time in the future when you no longer wish to make these decisions or lack the mental capacity to do so.”

Anyone can make an LPA, explains Tanya, "provided you are over the age of 18 and have the mental capacity.

"You can choose anyone you trust to act as your Attorney provided they are also over 18 and not bankrupt when they sign the form. You can also appoint more than one person to act and can appoint replacement attorneys if you wish.

There are now certain safeguards, she explains, which were not available under the old EPA:

"Although the LPA is valid it cannot be used until it has been registered with the Office of the Public Guardian. This is a welcome relief for those clients who want to ensure they control the time when their LPA becomes operational.”

In the absence of an LPA, your loved ones have no other alternative but to apply to the Court of Protection for a ‘Deputyship Order’. Tanya cautions "this is a time-intensive and costly process.

"We often encounter cases where clients are trying to organise their loved ones’ affairs while at the same time fighting off creditors for the non-payment of household bills and care home fees and organising their finances.

"We also experience long delays from the Court in obtaining the Deputyship Orders and, in some cases, it has taken up to ten months to obtain a decision. During this time the financial consequences can be dire and the distress experienced by family members can be greatly increased.

"None of this would be necessary if people simply put an LPA in place now. As a firm, we see the difficulties that individuals encounter when they could instead draw on our experience and expertise in this field.

"An LPA is like forward planning insurance – if you lose mental capacity then your loved ones, whom you have chosen and trust, can start accessing your funds immediately, arrange to pay your bills as and when they fall due, and life can carry on as normal.”