Loss of mental capacity and Legal Power of Attorney: why forward planning is key
The idea of losing mental capacity is not pleasant, nor is it one that a lot of people are comfortable discussing. However, have you thought about what you’d do if it happened to you? Browell Smith & Co explains why it’s important to take early action to make sure your affairs are looked after if you do lose mental capacity.
Losing mental capacity might not be something that you’ve thought about, but it should be. It doesn’t just relate to old age and dementia, although that’s one of the more common reasons behind the loss of mental capacity: it can also be caused by learning difficulties, substance abuse, a stroke or illness, or a serious accident and/or brain injury.
There are measures you can take to ensure a close friend or family member has the legal power to make key financial and health decisions for you if you do lose mental capacity. However, it is best to take these measures while you still have capacity to do so.
A Lasting Power of Attorney (LPA) is what you need. A solicitor can arrange it and can give you peace of mind to ensure your friends or family can look after you if you lose capacity to make decisions for yourself.
However, if you don’t have an LPA in place, things can become much more difficult and expensive.
As with so many things in life, a little bit of careful planning can save a lot of hassle further down the line.
What is a Lasting Power of Attorney?
An LPA is a legal document that allows someone to make decisions for you, or act on your behalf, if you’re no longer able to or if you no longer want to make your own decisions.
In short, there are two key kinds of LPA, as follows:
1. Property & Financial Affairs
This allows your Attorneys to deal with your property (including selling your home), bank accounts and investments, payment of bills and receipt of benefits, pensions etc on your behalf both whilst you have, and after you may have lost, your mental capacity.
2. Health & Welfare
This can only be used by your Attorneys after you have lost the mental capacity to make decisions about your personal welfare, for example due to illness, unconsciousness, or due to the onset of a condition such as dementia. It allows your Attorneys to make decisions on your behalf, such as the type of care and medical treatment you receive, where you live, and other matters relating to care.
Do you really need one?
In an ideal world, the answer would be ‘no’ and science would find a preventative cure for dementia. Sadly, there are 850,000 people in the UK with dementia – the number is set to rise to one million by 2025 and to two million by 2051. This means the chances of being affected by dementia – either directly or as a third party – are high.
There is a misconception that, should you lose your mental capacity, loved ones can act on your behalf. However, this cannot happen automatically. Without an LPA in place, an application would need to be made to the Court of Protection for someone to be appointed as a Deputy to act on your behalf. This is a long and expensive process, during which time loved ones will be unable to make any decisions on your behalf.
When should I get an LPA?
If you take nothing else from this blog then please just remember how important it is to prepare for the loss of mental capacity while you still have the capacity to do so.
Once the application has been submitted, they can take around 10 weeks to process, so take that into consideration as well.
If you have any further questions, a good solicitor will be able to help you understand the process and figure out the best way forward.
Browell Smith & Co has a team of friendly and approachable experts who can help you through every step of arranging a Lasting Power of Attorney for somebody, whether or not they have lost mental capacity. You can read more about our range of wills and elderly client services here.Back to News