Is a lasting power of attorney important?

Below is an extract from a blog I wrote a few years ago – whenever I am asked about losing mental capacity: “I am too young” etcetera I refer my clients to this story shown by the One Show by the BBC, hopefully, you will see why.

Heather Bateman’s world suddenly and noiselessly imploded. A successful children’s author, Heather was happily married and comfortably off. Life had been good. With a London house, a cottage in Norfolk and numerous children, step-children and stepgrandchildren, there had been little about which to complain. Until now.

Heather was kneeling at the edge of a country road, bent over her husband, Michael. Moments before he had been strolling towards her when he was struck by a car. As he lay motionless and Heather knelt, waiting for the ambulance, she sensed that life for her was set for a dramatic change.

Looking after day-to-day finances

She was right. As Heather feared, Michael’s injuries were terrible. He went into a coma, from which he would never recover. Of course, there was much for Heather to deal with. Aside from the shock of the accident and the trial of seeing that her husband was well-cared for, Heather was forced to deal with numerous everyday financial matters that come with a large family.

They had each written a will and shared the two properties. With separate bank accounts, most of the bills were paid from Michael’s. But, of course, the wills were irrelevant. Because though completely unconscious, Michael was still alive. Heather had no way of accessing his bank account. How was she to pay all those bills?

The Court of Protection – a necessary evil

A solicitor advised Heather that the only route open to her was through the Court of Protection, sometimes known as the Public Guardianship Office. How does this work? Perversely, although it was Heather who needed support, The Court of Protection was there to protect Michael from her – to actually make it difficult for her to gain access to vital funds. The only way through was for Heather to go through a long, complex procedure, filling in numerous forms detailing every aspect of their lives. Effectively,

Lasting Power of Attorney

Heather Bateman had to become Michael’s Receiver. To protect itself against accusations of wrong-doing, in the event of Michael recovering, the Court of Protection did everything in its power to be obstructive. The tone of their letters was cold, demanding and unfeeling. Heather was forced to jump through endless hoops and fill in countless forms to access funds. Just a simple example.

When building work needed to be done, the Court of Protection demanded she submit two estimates and justify her choice of builder, meaning a wait of several weeks before permission was given, and funds released. On top of the grief and stress of dealing with her husband’s situation, Heather also had to handle being treated with cold, suspicious disdain, before she could access any much-needed funds.

Could this cruel emotional anguish have been avoided? The answer is a resounding ‘yes’. How? By the simple, yet little-used process known as Lasting Power of Attorney (LPA). It’s nothing more than a simple legal document whereby, in the event of you becoming incapacitated, someone of your choosing is in place to make decisions on your behalf. This could be for your finances or for your personal affairs.

Don’t be fooled into thinking that family members can automatically step in to make decisions. It’s simply not the case. Heather’s husband never recovered. He died three years after the accident. So now, of course, the Court of Protection is no longer active. Heather is keen for others not to go through what she has suffered. She has written articles about the importance of LPA. You can also watch her speak about the experience on a clip from the BBC’s The One Show: https://www.youtube.com/watch?v=xNqGw1cvnkI.

There are two types of LPAs: (Source: Gov.UK)

Property and financial affairs attorneys

As a property and financial affairs attorney, you make (or help the donor make) decisions about things like:

■ money, tax and bills

■ bank and building society accounts

■ property and investments

■ pensions and benefits

You can use the donor’s money to look after their home and buy anything they need day to day (for example, food). Discuss decisions that affect the donor’s living arrangements, medical care or daily routine with their health and welfare attorney, if they have one.

Health and welfare attorneys

As a health and welfare attorney, you make (or help the donor make) decisions about things like:

■ daily routine, for example, washing, dressing and eating

■ medical care

■ where the donor lives

You might need to spend the donor’s money on things that maintain or improve their quality of life. This can include:

■ new clothes or hairdressing

■ decorating their home or room in a care home

■ paying for extra support so the donor can go out more, for example to visit friends or relatives or to go on holiday

You must ask for money from the person in charge of the donor’s funds.

Choose your attorney

You can choose one or more people to be your attorney. If you appoint more than one, you must decide whether they’ll make decisions separately or together.

Who can be your attorney

Your attorney needs to be 18 or over. They could be:

■ a relative

■ a friend

■ a professional, for example, a solicitor

■ your husband, wife or partner

You must appoint someone who has the mental capacity to make their own decisions. Your attorney does not need to live in the UK or be a British citizen.

When choosing an attorney, think about:

■ how well they look after their own affairs, for example, their finances

■ how well you know them

■ if you trust them to make decisions in your best interests

■ how happy they will be to make decisions for you

LPAs are important instruments and great care needs to be taken when drafting these documents and whilst they can be undone this is not as straight forward as you may think and if in doubt advice should be sought.