What to do if you’ve been appointed an attorney under an LPA

Posted on By Joanna Pegum
attorney with elderly man

If you have been appointed attorney under a friend or relative’s Lasting Power of Attorney (LPA), it is your responsibility to look after their affairs if they lose mental capacity. You may have been appointed on your own, or with other attorneys, and the LPA will specify whether you can act alone, or jointly with them.

The Office of the Public Guardian for England and Wales (OPG) has published some guidance for the two types of attorney, which will help you whether you are looking after their property and financial affairs, or their health and welfare.

Property and financial affairs

As an attorney for property and financial affairs, it’s your responsibility to look after the property and money of the person who made the LPA, who’s known as the donor.

This means you are responsible for their bank and building society accounts, claiming and receiving benefits, pensions and allowances, paying their bills (including for any care), buying or selling their home, and saving or investing on their behalf.

As soon as you become attorney, and while the donor still has mental capacity, make sure you get as much information as possible on where the donor keeps financial information, including the deeds to their home, and get certified copies of the LPA document.

Find out what their long-term plans are, for example, whether they want to sell or let their home if they need to move into a care home. Find out too, what their financial priorities are, for example, how much they like to keep in their current account, and how much to give to charity, or as birthday or other gifts.

Once you start acting as attorney, you will need to keep written records of their income and major outgoings, and keep bills. Make sure that their accounts are separate from your own.

It’s your job to help the donor make their own decisions, if they can. If they are not able to do so, you’ll need to follow any restrictions, conditions or guidance set out in the LPA. If it’s not clear, ask someone who knows the donor what they would be likely to do. Remember that every decision you make must be in their best interests.

Health and welfare

If you are an attorney for health and welfare, you need to make decisions on where the donor lives, which may be their own home or a care home, their day-to-day routine, their personal care and medical treatment.

As soon as you become attorney, and while the donor still has mental capacity, get to know the donor a bit better. Ask them where they want to live, and if it’s not specified in the LPA, whether they have made any care plans, including a living will. Find out what their preferences are, including diet, dress, hobbies, and where they like to spend their time. Ask what should happen to any pets, if they can no longer care for them.

Get certified copies of the LPA document, and contact details for their care providers, such as their doctor, dentist and optician.

When you become attorney you will need to follow any conditions set out in the LPA. If there is no clear guidance, ask others who know the donor.

As the donor’s attorney, you must help them reach their own decisions, if they can. You must always act honestly and in their best interests. Keep records of why you made particular decisions

Give your own contact details, as well as details of the donor’s likes and dislikes, to other people involved, including their family and friends, their doctor and other healthcare staff, and carers or care home staff. They may want to see proof of your identity and a certified copy of the LPA.

What is a Care Annuity?

Posted on By Joanna Pegum
elderly couple

The financial prospect of paying for a loved one’s care can be daunting, particularly when you have no idea how long they will need it. It is important to explore all of the options available, and some are less well known than others. A Care Annuity, also known as Care Fee Annuity or Care Home Annuity might be a useful long-term solution.

An annuity is a kind of insurance policy where you pay a lump sum to get a lifetime income to pay for care. The lump sum will guarantee an income sufficient to cover your relative’s care costs for the rest of his or her life. This income is paid tax free directly to the care provider (usually on a monthly basis) so the administrative burden of paying the fees is also removed.

How much will a Care Annuity cost?

The price of a plan is based on how much income your relative might need, so the insurance company will assess how long they are likely to need it for. The cost will depend on certain personal factors:

  • Their age
  • Current annuity rates
  • The level of income that might be needed
  • Their life expectancy (the shorter it is, the cheaper it will be)
  • Their level of health (the poorer their health, the cheaper it will be)

What are the advantages?

  • Many people like the reassurance that care has been paid for fully, and for life
  • Because the payment is capped, you will have a better idea of what funds you have left
  • A lump sum payment could be much cheaper than paying for care on a monthly basis
  • Most insurers guarantee a certain level of care, so you will be not be downgraded if a home closes down
  • Most insurers guarantee a certain area in which the care must be provided, so your family member can remain nearby
  • The money paid directly to the care provider is tax-free.

Are there any disadvantages?

  • You cannot change your mind once you have paid the insurer, and get a refund
  • If your loved one dies sooner than expected, you will not be reimbursed
  • There may be additional parts of the care your relative needs, that are not covered by the plan
  • If inflation or the cost of care increases, you may be asked to pay additional funds
  • The income payments could affect your relative’s entitlement to some means-tested benefits
  • It may not be feasible financially to pay up front in this way

While several specialist insurers on the market provide care home annuities, it would be best to take specialist advice since the rates and products offered between providers can be vastly different.

Who should I choose to be my attorney?

Posted on By Louise Polcaro
capacity,attorney

No one knows what’s going to happen in the future, and it can be reassuring to plan ahead to make provision for yourself and your family if anything were to happen to you. Making a will is a useful first step, but you may also consider making a power of attorney in case at any point you become incapable of managing your own affairs through age, illness or accident. In England and Wales, a Lasting Power of Attorney (LPA) enables you to appoint a trusted individual or individuals who, in the event of your loss of capacity, would be responsible for, and would have the legal authority to make, decisions in relation to your property and finances and/or your health and welfare.

Types of Lasting Power of Attorney

In England and Wales there are two types of LPA – Property and Financial Affairs and Health and Welfare – and you can appoint an attorney for either one or both of these.

With a Property and Financial Affairs LPA, your attorney will be responsible for all your financial affairs. This means looking after your money and making sure all your bills are paid. They will be responsible for your investments, property, money and other assets.

With a Health and Welfare LPA, your attorney will be responsible for your welfare. This means looking after your health, personal care, wellbeing and quality of life. They will be responsible for your accommodation and your physical and mental welfare and will be able to make choices about where you live, whether you should receive a particular healthcare treatment, and day-to-day things like diet, dress and daily routine.

Who should I choose?

With such important responsibilities, it is vital to consider your choice of attorney very carefully.

Your attorney must be at least 18 years old and can be a family member, spouse/partner or friend. Alternatively (or additionally) you can engage a qualified professional such as a solicitor to act as your attorney.

Some key considerations are as follows:

  • Can you trust them to act in your best interests?
  • How well do they know you? Do they understand your wishes and values?
  • Are they capable? (How well do they look after their own affairs?)
  • Do they understand the responsibility of the role?

You should discuss the various responsibilities with your chosen attorney to make sure they understand what you are asking of them and they are happy to be appointed.

Can I choose more than one attorney?

Being an attorney can involve making some difficult decisions and may be quite time consuming so you may wish to appoint more than one attorney to spread the responsibility. If you choose to appoint more than one attorney, you need to decide whether you want each individual attorney to have the power to act separately (make decisions on their own) or jointly (where all of your attorneys have to agree on a decision).

You can also nominate other people to replace your attorney or attorneys if at some point they can’t act on your behalf anymore.

Where can I get more information?

You can find out more about LPAs in our leaflet, Why Make a Lasting Power of Attorney? You may wish to discuss your requirements with a qualified professional, who can talk you through the various considerations.

You can also find extensive information about how to make and register an LPA in this guide, produced by the Office of the Public Guardian.

How do I make decisions for my disabled child?

Posted on By Louise Polcaro
decisions for disabled child

Until a disabled child reaches the age of 18, parents (in most cases) will have parental responsibility for their child and, therefore, can make most decisions for them. However, once a child reaches 18 the legal position on decision making changes. Parents lose parental responsibility and no longer have any legal responsibilities or automatic rights to make decisions about their child.

In England and Wales, the starting point for a disabled individual and/or their parent to consider, with regards to decision making, is to assess each decision separately and establish whether your child is able to make this decision for themselves. This is a key principle of the Mental Capacity Act 2005 and it must be assumed that everyone has the capacity to make a decision for themselves unless it can be shown that they lack the mental capacity to do so.

If it is clear that your child isn’t able to make a particular decision, then the decision must be taken on their behalf and the Mental Capacity Act sets out how this must be done. The process will depend on the type of decision to be made.

Health and welfare decisions

Probably the most important type of decisions for your disabled child are those dealing with their health and welfare, for example medical treatment; where to live; what care is given; etc.

The person making the decision may vary depending on the type of decision required. It could be a carer, a health professional, a social worker or a parent. This person must consider a number of factors before the decision is made and the Mental Capacity Act states that any decision must be made in the child’s ‘best interests’.

It’s important to have a good understanding of the Mental Capacity Act and how the decision-making process should work when a decision needs to be made. Any person making a decision for your child should consider whether it is appropriate to consult others, including you as parents, for your views on what is in your child’s best interests.

If there is a dispute in the decision-making process, then attempts should be made to resolve these. It might be necessary to obtain a second opinion on a particular matter, or hold a ‘best interests’ meeting or conference with the relevant parties.

How does the Court of Protection fit in?

The Court of Protection has the power to make decisions on behalf of a person who lacks the mental capacity to make their own decisions or they can appoint a deputy who is given specific powers to make decisions on behalf of that person.

For most decisions that need making, following the Mental Capacity Act will enable decisions to be taken in the best interests of your child.  It is generally considered a last resort to apply to the Court.

The type of application made will vary depending on the circumstances at the time. The Court could be asked to make a decision about a particular matter, such as what treatment they should or shouldn’t receive. The Court can also be asked to appoint a deputy who will have certain powers to make decisions on your child’s behalf for a specific period of time.

In some situations, an emergency application can be made to the Court if a decision is required urgently and there is a risk of harm or loss to an individual.

Financial decisions

It is also important to think about what financial matters your disabled child may need help with. What assets do they have in their name? What income do they receive?

If your child is receiving benefits, then you should check with the Department for Work and Pensions if you are the appointee and, therefore, are the person responsible for managing these.

Any organisations where your child has assets may not allow you to manage those assets once your child is 18. For example, banks will require your child to take control of their account and they usually only accept instructions directly from the account holder.

If your child does not have the mental capacity to manage these assets, then you can apply to the Court of Protection to become their deputy for financial matters.

Any application for a deputyship will be considered by the Court and, if approved, they will issue a Deputy Order appointing the deputy and setting out what the deputy can and can’t do. The Deputy Order will then give you the necessary legal authority to manage your child’s financial affairs.

Who can help?

If you have any queries or concerns about how to make decisions for your disabled child, you should speak to a qualified professional, who will be able to advise on the best course for you and your family.

Katherine Miller TEP is a Director and Solicitor at Renaissance Legal

What is a living will?

Posted on By Louise Polcaro
Living will

The term ‘living will’ is often used to refer to what’s known as an ‘advance directive’ in Scotland, or an ‘advance decision’ in England, Wales and Northern Ireland. It is a written record of medical treatment that you may or may not wish to receive in the future. It only comes in to effect if you lose mental capacity or otherwise lose the ability to communicate your wishes.

A living will sets out your wishes for future medical treatment should you suffer from any one or more of a list of serious and irreversible medical conditions, including, for example, severe cancer or advanced dementia. Living wills typically state that you are not to receive life sustaining treatment, such as artificial feeding. While obvious pain and suffering is to be relieved, no attempt is to be made to prolong your life.

Benefits of having a living will

Many people have strong feelings about the medical treatment they may or may not wish to receive, if they were to suffer from a terminal illness. If you do, a living will would allow you to clearly communicate these wishes to your family and doctors at a time when you are no longer able to do so personally.

A living will can also help to alleviate your family’s distress at having to make difficult decisions about your medical care. In effect, it takes the decision outwith your family’s hands.

How is a living will given effect?

Unlike in England and Wales and Northern Ireland, where a living will is binding on doctors, in Scotland it is only one of a number of considerations that a medical team will take into account.  However, provided that it was granted while you fully understood the implications of signing it, a living will is highly persuasive and should be given effect.

Your living will would only be used if you lost the ability to communicate your wishes. This may be due to mental incapacity or a physical condition that prevents you from communicating.

Who should be notified?

You should make people aware that you have put a living will in place.

  • Your GP should be advised.  A copy of the living will can be placed on your medical records for ease of future reference.
  • You should tell your immediate relatives. Your next of kin may be consulted about your medical treatment if you are unable to communicate what your wishes are. It is important that your family are made aware of these wishes.
  • If you have a welfare power of attorney, your welfare attorney/s must be advised as they will be consulted about your medical treatment if you were to lose capacity.

Preparing a living will

Living wills are an increasingly popular estate-planning tool. It is extremely important that the document is an accurate and clear reflection of your wishes for future medical treatment. If considering putting one in pace as part of your estate plan, you should talk to a qualified professional. The charity Compassion in Dying can also provide further information and support, as well as free forms (online or via post), which, if completed correctly, are legally binding.

Jaclyn Russell TEP is a Partner in the private client team at Stronachs LLP in Aberdeen, Scotland 

I have been given power of attorney, what does this mean?

Posted on By admin
senior man reading

If someone you are close to is planning ahead, getting older, or has been diagnosed with an illness that might result in them being unable to make decisions for themselves, they might choose to make a Lasting Power of Attorney (LPA)*.

If you have been asked to be someone’s attorney in this situation it means that, in the event of their loss of capacity, you would be responsible for, and would have the legal authority to make, decisions in relation to their property and finances and/or their health and welfare.

As an attorney you would have a legal responsibility to act in the donor’s best interests and, where possible, help them to make their own decisions.

Being an attorney can involve making some difficult decisions and may be quite time consuming so before you agree to take on this responsibility, it is worth considering exactly what may be required of you and whether you feel you are capable of taking this on.

Would you be the only attorney?

You may have been one of a few people asked to be an attorney, in which case the responsibility will be spread across more people, however in this case the person making the LPA will have to decide whether they want each individual attorney to have the power to act separately (make decisions on your own) or jointly (where all of you have to agree on a decision). If you have any concerns about working with the other attorneys you should voice these before agreeing to act as attorney.

Types of Lasting Power of Attorney

In England and Wales there are two types of LPA – Property and Financial Affairs and Health and Welfare – and you may have been asked to be attorney for either one or both of these. We have listed some of the responsibilities for each of these below, and links are given to guidance provided by the Office of the Public Guardian for England and Wales (OPG) .

Property and Financial Affairs LPA

With a Property and Financial Affairs LPA, you will be responsible for all the financial matters of the person with impaired capacity. This means looking after their money and making sure all their bills are paid. You will be responsible for their investments, property, money and other assets. Your responsibilities would include:

  • Writing cheques and paying bills
  • Selling or renting property
  • Carrying out their trade or business
  • Honouring any contracts they may have set up
  • Conducting legal proceedings on their behalf
  • Making gifts on their behalf on customary occasions to their friends and family, eg birthday or Christmas presents
  • Making gifts to any charity which expected gifts from the person, eg keeping up a monthly standing order they had set up

Health and Welfare LPA

If you have a Health and Welfare LPA, you will be responsible for the welfare of the person with impaired capacity. This means looking after their health, personal care, wellbeing and quality of life. You will be responsible for their accommodation and their physical and mental welfare and will be able to make choices about:

  • Where they live
  • Day-to-day things like their diet, dress and daily routine
  • Whether a care home or a nursing home is best for them, and which one
  • Whether they can continue to live at home with help from social services
  • If they need to receive healthcare treatment
  • Whether they should stop receiving a particular healthcare treatment.

* This article applies to English and Welsh LPAs. Different rules apply in Scotland and Northern Ireland.