Mental capacity assessors TSF Consultants share their tips on what you need to think about when setting up a Lasting Power of Attorney

Don’t delay

It is a sad fact that people often leave it too late to get a lasting power of attorney. If you or a loved one has early signs of some cognitive difficulty don’t be lulled into thinking that this is something that can wait. Time is often of the essence and delays will only result in your family member or loved one’s cognition deteriorating – until it is too late and the only alternative is an application to the Court of Protection. But beware the comparative cost of this both in time and money is phenomenal and don’t forget that whilst you are waiting the six months for your case to go through, you or your loved one will have nobody that can legally act on their behalf.

Don’t think ‘It’ll never happen to me’

Nobody likes to think about the consequences of losing the ability to manage your own affairs but it is a sad reality that as the population ages, so the incidence of dementia and other associated cognitive disorders increases. However, it’s not just dementia that you need to be wary of. A stroke, road accident, fall or some other form of misfortune could also render you incapable of managing your finances and by then it might be too late to make a lasting power of attorney.

Don’t expect your decisions to never be challenged

It is a sad fact that the courts are awash with family members challenging decisions that have been made by perfectly capacitous people – remember the case of Jimmy Hill the famous footballer? He created an Enduring Power of Attorney document (as it was known pre-2007) with his second wife and solicitor as attorneys, but didn’t include his children (from his previous marriages). When the children discovered the existence of the EPA, after it had been registered, they were not surprisingly rather annoyed that they hadn’t been included in its creation so they could help with making decisions about Jimmy’s care and tried to challenge it. It is vital that when you make your LPAs you have a proper and fully documented assessment so that any possible future challenge to your wishes can be suitably dealt with.

Do use professionals

Did you know that in the three years between 2012 and 2015, there were 15,912 LPAs rejected by the Office of the Public Guardian and a further 133,210 returned by the Office of the Public Guardian requesting further information (source: Ministry of Justice 2015)? And did you know that each time you re-submit your application there is a cost? Whilst the forms may appear easy to complete, getting it wrong can prove costly.

Do get a Health and Welfare LPA

Whilst everybody seems to appreciate the need for a Property and Financial Affairs LPA, many people fail to see the importance of having one for health and welfare. This is strange considering that given the choice between the two, most people would opt for health over wealth. Now consider the scenario whereby you allow a complete stranger to decide where you should live, what treatment to receive and ultimately whether to you could live or die – with scant regard for your wishes. If you don’t have an LPA for health and welfare that is just the scenario you could be creating.

Do choose your attorneys carefully

The power and authority that you are granting your attorneys is vast. Did you know that potentially as soon as an LPA for Property and Financial Affairs is registered, your attorneys can access your bank accounts and sell any assets that you might own all under the guise of ‘acting in your best interests’? It is also a sad fact that once money is involved, many people don’t always act in quite the way we would like. It is therefore essential that you consider carefully who you are going to appoint as your attorneys and that you trust them implicitly.

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