Two in three people will lose the capacity to make decisions at some point. The most common conditions that affect capacity include stroke; Alzheimer’s and other forms of dementia, someone could also lose mental capacity as the result of an injury, in a car accident for example.
In any situation where you lack capacity unless you have already completed a Lasting Power of Attorney, your loved ones will need to apply to become your ‘deputy’ through the Court of Protection, Deputyship is a time consuming and arduous court process that can cost thousands of pounds. To avoid this a lasting power of attorney is a legal document that lets you ‘the Donor’ appoint someone you trust known as an ‘attorney’ to make decisions on your behalf. In order to make a power of attorney you must still have mental capacity, once you have lost capacity, it is too late.
There are 2 types of power of attorney, one for Health Decisions and one for Financial Decisions. A Health Decisions power of attorney will allow you to appoint family or friends to make decisions about things like your daily routine (e.g. eating and what to wear); medical care; moving into a care home and life-sustaining treatment. A Financial Decisions power of attorney allows those appointed to make decisions about things like paying bills; managing Savings / Investments; collecting benefits and selling your home.
Myth: Appointing my spouse and children jointly as my attorneys is the best way for them to act.
Fact: Appointing family members jointly means that they must all act together for any given decision, for example all would need to sign to move a sum of money from one account to another. You would have to appoint your attorneys to act jointly and severally to enable them to act as individuals.
Sole Spouse Attorney
Myth: I only need my spouse to act for me.
Fact: If your spouse becomes unable to act then your Lasting Power of Attorney is useless. Also your spouse would not be able to deal with any property or accounts to which they also are a party, as this would be a conflict of interest. We always advise clients appoint more than one attorney and replacements and that they can act jointly and severally.
Age of Incapacity
Myth: Mental Incapacity is something that only effects people later in life, with illnesses such as Alzheimer’s, so because I’m young it is not important to me.
Fact: An accident or illness can strike at any time, often without warning. Your Lasting Power of Attorney needs to be signed as soon as possible, whilst you have your capacity, it’s that simple.
Spouse has Power
Myth: If I suffer an accident or illness, my spouse as my next of kin will automatically be able to deal with my affairs.
Fact: Your spouse or children do not have an automatic right to act on your behalf. Without a Lasting Power of Attorney, they will be required to apply to the Court of Protection to be appointed as your deputy.
Myth: I can simply add my spouse or children to my bank accounts, as joint account holders they will be able to carry on with my affairs as normal even if I lose capacity.
Fact: Banks are guided by the British Bankers Association to freeze both solely and jointly held accounts where one account holder loses mental capacity.
Next of Kin at Hospital
Myth: If anything happens to me my next of kin will be able to make decisions for me regarding any life sustaining treatment. Any doctor would have to follow their wishes.
Fact: Only by having an existing Lasting Power of Attorney can you give your next of kin the right to make choices about your health and welfare, including any life sustaining treatment you may need.
Cost of Deputyship
Myth: Can’t be that expensive, I’m next of kin anyway.
Fact: There are a number of costs associated with Court of Protection applications, these can run into many thousands over the years.