Powers of Attorney & Capacity
Planning for the future involves more than deciding what should happen to your estate after death. It can also involve making arrangements for circumstances in which you are unable to make or communicate important decisions yourself.
A Lasting Power of Attorney can allow you to choose trusted people to make decisions on your behalf if you are unable to do so or need assistance. In other circumstances, where someone has already lost the ability to make certain decisions and has not made an appropriate power of attorney, an application to the Court of Protection may be necessary.
Capacity-related matters can be sensitive and may involve important decisions about finances, property, health and welfare. Obtaining legal advice can help ensure that the appropriate arrangements are considered for your circumstances.
SWM Solicitors can provide advice on Lasting Powers of Attorney, Deputyship Applications, Court of Protection matters and wider issues relating to mental capacity.
Understanding Lasting Powers of Attorney and Mental Capacity
Lasting Powers of Attorney allow individuals to appoint trusted people to make certain decisions on their behalf if needed. Planning ahead can help establish clear arrangements for managing financial affairs, health and welfare, and decisions involving mental capacity.
Creating and Managing Lasting Powers of Attorney
Lasting Powers of Attorney
A Lasting Power of Attorney (LPA) allows you to appoint one or more attorneys to make decisions on your behalf concerning property and financial affairs or health and welfare. It must be created while you have the required mental capacity, making advance planning an important consideration.
Property and Financial Affairs LPA
A Property and Financial Affairs LPA authorises appointed attorneys to make certain decisions concerning your finances and property. Depending on the terms of the LPA, this may include managing bank accounts, paying bills, handling investments and dealing with property.
Health and Welfare LPA
A Health and Welfare LPA allows appointed attorneys to make certain decisions about your personal welfare and healthcare when you lack the capacity to make the relevant decisions yourself. These decisions may include care arrangements, where you live and certain aspects of your healthcare.
Choosing Attorneys
Choosing attorneys involves appointing people you trust to make decisions responsibly and in accordance with your wishes and the applicable legal requirements. The number of attorneys you appoint and how they are authorised to act should be carefully considered when preparing an LPA.
Court of Protection and Deputyship
Deputyship Applications
Where someone lacks mental capacity and has no appropriate LPA in place, it may be necessary to apply to the Court of Protection for a deputy to be appointed. The application involves providing information about the person’s circumstances and the decisions the proposed deputy may need authority to make.
Court of Protection
The Court of Protection deals with certain decisions concerning people who lack the mental capacity to make particular decisions themselves. Proceedings may involve property and financial affairs, health and welfare matters, or applications for authority to make specific decisions.
Mental Capacity and Future Planning
Mental Capacity Matters
Mental capacity is assessed in relation to the particular decision a person needs to make, rather than assuming they can or cannot make every decision. Where concerns arise about capacity, the relevant circumstances and available evidence can help establish what legal arrangements may be appropriate.
Planning Ahead
Planning ahead allows you to consider who should make decisions on your behalf and what arrangements may be needed if you lose mental capacity. Putting appropriate legal documents in place can help reduce uncertainty and provide greater clarity for you and your family.
When an LPA May Need Reviewing
An existing LPA may need to be considered again if circumstances change.
For example, you may wish to review your arrangements if an attorney can no longer act, relationships have changed or your circumstances have significantly altered.
It is important to understand the legal requirements surrounding the cancellation, replacement or alteration of an LPA. Simply making another document does not necessarily resolve every issue with an existing arrangement.
Professional advice can help determine what steps may be appropriate.
Responsibilities of Attorneys and Deputies
Being appointed to make decisions for another person carries significant responsibility.
Attorneys and deputies must generally act within the authority given to them and comply with the relevant legal duties. They should make decisions appropriately and keep proper records where required.
Deputies appointed by the Court of Protection may have additional responsibilities and reporting requirements.
If an attorney or deputy is uncertain about their authority or responsibilities, obtaining legal advice before taking significant action can help prevent problems.
Dealing With Capacity Concerns
Capacity concerns can be particularly difficult for families, especially where relatives disagree about whether someone can make a particular decision.
It may be necessary to establish the nature of the decision, consider the person’s ability to understand and communicate the relevant information, and determine whether further legal steps are required.
In some situations, a formal application may be necessary. In others, appropriate support may allow the individual to participate in decision-making themselves.
The circumstances should be considered carefully rather than making assumptions about a person’s ability to make decisions.