Modern medicine is amazing - life expectancy in the UK 100 years ago was only 56 years and 59 years for men and women respectively, but today those figures are 79 years and 83 years! However, while modern medicine is brilliant at keeping our bodies going, it has not been as successful at keeping our minds functioning properly, and more and more people suffer from various dementia conditions and other conditions which reduce mental capacity as our population ages.
As a person loses mental capacity, they lose the ability to make decisions for themselves, including decisions about money, paying bills, and what kind of care or medical treatment they prefer. Someone needs to make those decisions, but how can we determine who should be making them?
The best answer is for a person to choose one or more people they can trust to make decisions for them, in that person’s best interests. In the UK, this is done with Lasting Powers of Attorney (LPAs). An LPA allows a person (the donor) to appoint one or more people (the attorneys) to have authority in the future if the donor loses mental capacity. LPAs come in two types: Property & Finance LPAs deal with decisions about money, spending, and property, while Health & Welfare LPAs deal with care, medical treatment, and other non-financial decisions.
LPAs are an effective solution to the problem of reduced mental capacity, but they have one significant condition – they must be put in place before a donor loses mental capacity. In other words, LPAs involve some planning and require thinking about a potentially difficult and scary future. It is never easy to face the fact that our minds might become less capable in the future, and for this reason, many people do not like to think or talk about this issue.
We are often approached by family members concerned about an elderly relative who might benefit from LPAs, and I have found that there are a couple of key points to raise in discussing LPAs with a potential donor:
1. An LPA does not take away a person’s ability to make their own decisions. Donors often express the fear that an LPA could be used to force them into residential care, or used to take away their money. It is important to emphasize that, even after signing an LPA, a person still retains the sole right to make their own decisions for as long as they retain mental capacity.
2. Most LPAs will, hopefully, never need to be used. If a donor lives out their life with full capacity, then an LPA may never actually be needed. Even in such cases, however, LPAs provide reassurance and security in case the worst happens.
3. A donor is protected from misuse of LPAs by the Office of the Public Guardian, the government body overseeing LPAs. An attorney cannot use an LPA to act contrary to the donor’s best interests, and if they try, the Office of the Public Guardian can intervene to protect the donor.
4. A donor can cancel their LPAs if they change their mind, for whatever reason. As long as a donor retains mental capacity, they retain full control over the use of their LPAs.
5. LPAs can be thought of as similar to insurance policies – you hope to never need them, but they offer protection if the worst happens. Similarly to insurance policies, if they worst happens and LPAs are not in place, the alternatives are much more costly and disruptive.
Donors can feel empowered and confident in making LPAs if they know these key points, and in fact it is crucial that every donor understand these points before proceeding with LPAs.
LPAs are not about giving up making your own decisions, they are about actively deciding who is going to help you if you can no longer help yourself in the future.
For more information about Lasting Powers of Attorney, please contact Alexander Mahdavi, Head of JPC’s Private Client team, by email amahdavi@jpclaw.co.uk, telephone 0207 625 4424 or connect with him on LinkedIn.
