It can be difficult to think towards the future and prepare for eventualities such as the loss of mental capacity, but this can prove vital when urgent and life-changing decisions are needed. Our Care and Capacity specialist Jessica Beddows explains this and highlights a particular case in which an LPA could have made a big difference.
Many clients are now aware of the need for a Lasting Power of Attorney (“LPA”) to be put in place to allow attorneys to assist them with their financial affairs.
There are still, however, many clients who do not consider a health and welfare LPA necessary. These documents can be used to make decisions about the person’s medical treatment if they were to lack the mental capacity to make such decisions themselves. They also allow you to give your attorneys the power to make decisions in respect of your care, as well as specific decisions such as where you live, the form of care you receive, who visits you and who has access to your personal information (such as health and social care records).
Many clients wish to provide further information about life sustaining treatment decisions and this can be in the form of an Advance Decision (also known as a Living Will). These documents can provide the finer details of your preferences and requirements for treatment in various conditions and circumstances, in the event that you are unable to make these decisions yourself or to give your instructions. It is important that Advance Decisions are kept up to date and we would recommend that these are re-signed at least every five years, preferably on an annual basis.
Although a health and welfare LPA does not have effect until the donor loses mental capacity, we have seen increasing examples of these documents being required. The attorneys have the final say as to where the person lives (whether this is a care home, nursing home or in their own home with help from carers), whether the person receives a particular health care treatment or if this is withdrawn and also more day to day decisions such as visitation rights, diet and dress etc.
One particular case I have dealt with recently illustrates the need to prepare an LPA and how this can be of benefit:
Mr B had an accident on his farm and required life sustaining treatment when in hospital. As he had not prepared LPAs and was receiving this treatment for some time, an order was required from the Court of Protection to appoint a deputy to manage Mr B’s financial affairs. This included running the business at the farm, dealing with Mr B’s bank accounts, paying his bills, as well as dealing with the insurance claim for the personal injury suffered by him. The deputy had to continue to be in place whilst Mr B recuperated and recovered from the memory loss and confusion he was experiencing.
Although the Deputy Order could be obtained, the standard timescale is approximately 5 to 6 months and even an urgent application can take around 3 to 4 months. Had Mr B prepared LPAs prior to his accident, this is something his attorneys could have managed for him straight away. Furthermore, a deputy is subject to more stringent checks than an attorney:- they must pay a yearly bond fee (this is effectively an insurance policy to protect the person who lacks capacity) and they must produce a full report each year to the court detailing what they have done with the person’s funds over that year, what decisions they have had to make and why.
Once Mr B regained capacity, the Deputy Order was dismissed and LPAs were prepared for him, appointing attorneys who could manage both his financial affairs and health and welfare matters, if required in the future.
One more important distinction between a Deputy Order and an LPA is that you cannot obtain a general order to cover health and welfare matters as a deputy. The Court of Protection can only grant limited health and welfare orders and these are often limited to a particular act and time period. These orders are extremely hard to obtain and they are rarely issued, due to there being other structures in place under local legislation.
Unlike an application for a financial deputy, the Court’s permission must be sought to proceed with an application for a health and welfare deputyship. The Court must be persuaded that it is necessary for a deputy to be appointed, as in most cases the core principles of the Mental Capacity Act 2005 are enough to ensure that decisions can be made in respect of someone’s health and welfare.
The Office of the Public Guardian reported a significant growth in LPA applications in 2014/15 which continued into 2015/16. Over this period, some 927,308 LPA applications were dealt with by the Office of the Public Guardian.
At Lodders, we’re experts in helping our clients and their carers to manage the legal issues that affect them. We also understand that planning for the future means preparing for the unexpected. For more information on preparing an LPA or for other Care and Capacity related matters, please contact Jessica Beddows on 01789 206142 or by email.