Why a Lasting Power of Attorney Is Important For Us All: Part IV

How can I help if there isn’t an Lasting Power of Attorney (LPA) in place?

In this article, I want to examine how to support a loved one if a Lasting Power of Attorney has not been registered.  Whilst we encourage everyone to view an LPA as they might a will and put this arrangement into place well before it is needed, we do understand that a relative might be resistant to the idea or events may overtake the best plans for the future.

The first point to remember is that if an individual has mental capacity, they can still make an LPA even though they may shortly be about to lose the ability to make effective decisions. An early diagnosis of dementia does not mean that a person is automatically incapable of setting up an LPA; they may still be able to make effective decisions on their own behalf and understand the consequences of their actions. If you are in doubt, it might be worth speaking to that person’s GP or carer.

It's also important to know that if your loved one or their prospective attorneys are living abroad, you can still put an LPA in place. If they return to the UK in the future, this may be very helpful and even if your family member continues to live in another country, the LPA will give a trusted third party the ability to deal with bank accounts, bills and other UK assets and liabilities. Of course, foreign residents may often need to have separate arrangements that work under their local system and laws too. Like an LPA, this is worth investigation early before the need for intervention becomes urgent.

If it really isn’t possible for your loved one to make decisions on their own behalf anymore, you can generally make decisions on their behalf without any formal legal process provided that those decisions are in the best interests of the individual concerned. In many situations,  sons and daughters will work together to select the right care home for Mum or make good decisions about cancer treatment for Dad. If those close relatives can collaborate, provided that they are acting in accordance with any expression of wishes or living will, there is no need to take further steps. However, if the individual has a long-term lack of capacity, cannot understand a complex medical issue or if there is a dispute between those who are caring for them, then you can apply to the Court of Protection to be appointed as their Deputy. If you need to make decisions about health care or medical treatment, you should seek appointment as a Personal Welfare Deputy.  This means that you can take decisions about complex treatment or urgent care on the behalf of your relative or friend. If the individual needs help with paying bills or organising their finances, you need to take on the responsibility of Property and Financial Affairs Deputy. This will give you authority to speak to banks, utility companies and investment managers.

At all times, a Deputy must act in the best interests of the individual concerned. And the Mental Health Act enshrines the principle that, legally, just because a person makes a poor decision, it doesn’t mean that they don’t have the capacity to make that decision. You might seriously disagree with your aunt selling her house and using the proceeds for a round the world cruise but unless you believe that she is not able to make this decision because she has a medical condition that renders her incapable of thinking rationally, your aunt is free to set sail whenever she chooses.

If there is a family dispute regarding the right outcome, the use of the powers of a Deputy can be valuable. A single contentious issue can also be brought to the Court of Protection for its adjudication. It is worth noting that there are costs associated with any legal action of this nature, so it’s always preferable to try to resolve issues amicably.