Mental capacity
When researching powers of attorney, you will no doubt notice that the term “mental capacity” is thrown around a lot. Medical professionals use it. Legal professionals use it. Care providers use it.
But what does this mean?
We’ve found Age UK’s resources to be the most useful resource that is readily available to explain this, here is a link to their page on mental capacity. However, we will summarise their explanation here. Essentially, mental capacity is the ability to make and communicate specific decisions when they need to be made. Within this, there are three key components that professionals need to ensure you understand: the decision you need to make, why you need to make it and the likely outcome of your decision. It has been noted that mental capacity is not necessarily a fixed state. For example, some individuals may find that they have the mental capacity to make some decisions on some days not but on other days.
Other individuals might find that they can make decisions about certain things but not others, for example being able to understand financial decisions while purchasing food and everyday goods but not be able to understand enough to make relevant decisions while purchasing infrequent things, such as home insurance. However, it should be pointed out that needing more time to understand or communicate your decisions does not necessarily indicate a lack of mental capacity. Care should always be taken to protect everyone’s decision making abilities.
The Myth of Next of Kin
Many individuals assumed that because they are next of kin that they will automatically be able to deal with your bank accounts and pension, and make decisions about your health, if you lose mental capacity. However, this is not the case. Without an LPA, they will not have any authority to act on your behalf. Therefore, it is even more important to ensure that you have your affairs in order long before you are incapacitated, as if you lose capacity you will not be able to arrange a LPA. Instead, you would have to apply for a court of protection deputyship which takes significantly longer and can lead to delays in important decisions being made and acted.
At Nicholls Law, we specialise in Elder Client Asset and Estate Protection and LPAs are an important part of that. We offer services where we can assist you in drafting LPA documentation, or we can act on your behalf as a professional attorney.
How to choose your attorney
Your attorney is being given the ability to make life changing decisions on your behalf. Therefore, it is incredibly important that you choose the right person to act on your behalf. The OPG require attorneys to be:
– Aged 18 years old or over
– They must have mental capacity themselves to act as an attorney
– For financial attorneys, the attorney must not be bankrupt.
Traditionally, family members of close friends were chosen as attorneys. However, more and more people are choosing to appoint professional attorneys, such as solicitors or accountants, to act as their property and finance attorneys.
A donor can appoint anyone they like as an attorney provided they are an adult with mental capacity, and not bankrupt if appointed for a property and financial affairs LPA. Typically, family members or close friends are chosen. Some people may choose to appoint professionals (for example, solicitors or accountants) to act as their property and finance attorney.
Sometimes just one attorney is appointed, but more can be chosen. If there is more than one attorney, the donor can decide whether the attorneys must act either:
‘jointly’ – which means all decisions must be made together ’jointly and severally’- where some decisions have to be made together, but some can be made separately.
For example, some property and financial affairs LPAs may specify that the attorneys must act ‘jointly’ when selling property, but the attorneys can act ‘jointly and severally’ for all other transactions. Similarly, a health and welfare LPA may specify that the attorneys must work ‘jointly’ when deciding where the donor should live.
Why use a professional attorney
We all know that at times it can be incredibly complicated to make the decisions that we need to make. May of our clients decided to enlist a professional attorney instead of using a family member as they wanted to ensure that the decisions that were being made were the must appropriate for their circumstances. Professional attorneys are often able to make better decision, quicker as they are less emotionally involved. Find out more on our Powers of Attorney page.
We will have a better solution for you!
In summary
There are three different types of power of attorney, however only LPAs can protect your future from you losing capacity. Within LPA there are two different types, financial and health. It is important to ensure you have the right person, or persons, representing you for your LPA. There are many benefits to enlisting a professional attorney which help ensure your future is in safe hands.
If you are interested in setting up a LPA for yourself or if you think a loved one would benefit, please contact us to speak to one of our expert staff to see if it is suitable for your needs.