Making future decisions
You may wish to prepare for a time when you can no longer manage the running of your day-to-day affairs or make decisions about your property and finances, or about your health and welfare.
You can make a Lasting Power of Attorney (LPA) and can choose one or more people you trust to deal with all or some of your property and financial affairs or health and welfare when, and if, it becomes a problem for you. You must apply for an LPA while you have ‘capacity’ to do so.
People often appoint more than one ‘attorney’ to act for them. This guards against abuse of the wide powers over property and finance that the Power of Attorney gives. It can also be a good idea because people may have different skills relating to property, finance or health and welfare. Attorneys may act ‘jointly’(where they must all sign all transactions) or ‘jointly and severally’ where only one person needs to sign. If you change your mind later about the person or people you have chosen, you can revoke the document.
If you want to make a property and financial affairs LPA and a health and welfare LPA these will form two separate documents. An LPA must be registered with the Office of the Public Guardian before it can be used.
The property and financial affairs LPA can take effect immediately or when you lose mental capacity to make the decisions about your property and finance and this can be specified. The health and welfare LPA can only be used when you lose mental capacity to make those decisions for yourself.
If you have already made an Enduring Power of Attorney (EPA) or are acting on behalf of someone under an EPA, it will still be valid under the new legislation unless the person who made it decides to destroy it and replace it with an LPA. An EPA must be registered when the person loses mental capacity to make decisions about their property and finances if it is to be used.
The Mental Capacity Act allows you to make an ‘advance decision to refuse treatment’ if this is important to you. The MCA Code of practice gives details of how to make this advance decision.
The Court of Protection
The Court of Protection can make decisions about the finances and welfare of people who cannot make decisions for themselves.
If someone only has income from benefits and no capital then their affairs can be managed by an Appointee – through the Department for Work and Pensions. If they have capital (e.g. savings) then a court appointed deputy will be required.
If your friend or relative:
- is mentally incapable of managing their own financial or welfare affairs
- has not made an Enduring or Lasting Power of Attorney (EPA) and is now mentally incapable of doing so
- has assets that need to be used for his or her benefit or administered in some way, or has complex welfare decisions that cannot be resolved in any other way
then you can apply to the Court of Protection.
The Court will either make a one-off decision or they will appoint a Deputy to manage and administer the person's property and financial affairs.
Please note: They do not offer legal advice so for this, or for help in understanding the Powers of Attorney, you should contact a solicitor.