Lifetime planning


When should I take out a lasting power of attorney?

Lasting powers of attorney (LPAs) are relevant to all adults of any age. They have become increasingly important as the risk of mental incapacity grows through a combination of illness, accident or just old age. A person who loses capacity at a young age could have many years when an LPA is a central part of making decisions in their best interests.

What are the different types of lasting power of attorney?

The property and financial affairs LPA deals with finances which include banks, stockbrokers and your property. The health and welfare LPA deals with medical needs such as medication as well as life sustaining treatment.

What is an attorney?

An attorney is the person you choose to have the power to make difficult decisions about your finances and/or health and welfare should you not be able to because you lack mental capacity.

Who should I choose as my attorney?

An attorney should be someone trusted, usually a relative or friend or a professional person.

What happens if I lose mental capacity without an LPA?

Your loved ones will have to apply to the Court of Protection for a deputyship order to obtain permission to access your funds no access to your funds to support your future care no right to make decisions about your health and welfare and therefore your own wishes may be ignored.

What happens if I have an LPA and am suddenly incapacitated?

Your attorney (often family or friends) will have immediate access to your funds to support your care. They will have the right to make decisions about your health and welfare and ensure your wishes are carried out. Having an LPA also means they won’t have to apply to the Court of Protection which can be stressful, time consuming and expensive process.

Who is a certificate provider?

To validate an LPA a certificate needs to be completed by an independent third party, the certificate provider. This confirms that they understand the purpose of the LPA and that it wasn’t created fraudulently or under pressure. Without this the LPA cannot be registered.

Who is the named person?

A named person is someone not chosen as an attorney but who is notified that the LPA has been applied for and registered. This is not a compulsory requirement.

Can I include decisions about not wanting to be resuscitated in my LPA?

Yes, there are many things can be included in an LPA. In order to include the correct wording, it is important to seek professional advice.

Who is told about my lasting power of attorney?

Attorneys and named persons are notified when the LPA is registered. If an LPA is in use, financial institutions (for example banks and accountants) will need to be informed and perhaps medical advisers.

How do I register a lasting power of attorney?

An LPA needs to be registered with the Office of the Public Guardian using their formal registration procedure.

What does lacking mental capacity mean?

If you lack mental capacity, then you are not able to give instructions or manage your daily needs.

How is mental capacity assessed?

Mental incapacity is established by a medical professional.

When does a lasting power of attorney take effect?

A property and financial LPA can take effect whilst you have mental capacity and when you lose it. A health and welfare LPA can only take effect once you have lost mental capacity.

Can I change or cancel my lasting power of attorney?

Yes, LPAs can be changed or cancelled at anytime, as long as you have mental capacity.

What are the responsibilities of the attorney?

There are many responsibilities for an attorney which differ for each individual. It is important that an attorney is aware of their responsibilities and should take legal advice to ensure they are carrying out there important role correctly.

Can I object to the registration of an LPA?

The registration of an LPA can be objected if made within the time constraints and on appropriate grounds set by the Office of the Public Guardian

What is the Court of Protection?

The Court of Protection was created following the Mental Capacity Act 2005. The court has authority over the property and financial affairs and personal welfare of people who lack mental capacity to make decisions for themselves. The Court of Protection appoint a deputy or deputies to manage the affairs of the person who has lost mental capacity.

Who can be a deputy?

It is normally a relative who would make the application to the Court of Protection for their appointment as deputy. If there are no relatives or the relatives are unwilling to act then a close friend, lawyer or other professional could also apply to deal with all aspects of their financial affairs.

Are there different types of deputyship order?

There are two types of deputyship order the property and affairs deputyship order gives the deputy the legal authority to manage the individual’s entire financial affairs the personal welfare deputyship order gives the deputy the legal authority to make decisions about the individual’s health needs and general welfare. These orders are very difficult to obtain. A single order can be applied for to give a person(s) permission to make one-off decisions on behalf of the person who lacks mental capacity. These are often used for one-off welfare decisions.

Can I make an emergency application to the Court of Protection?

Yes an emergency application can be made to the Court of Protection if there is a life or death situation and a decision needs to be made as soon as possible, this would only be used for welfare cases. The court has a designated emergency helpline that is available 24 hours a day. If an urgent decision needs to be made on a financial matter, then an application could be made for an interim order to enable the proposed deputy to be able to make the decision in question before the issue of the deputyship order.

What decisions can a deputy make?

The court order itself will advise the deputy as to what they can and can’t do, for example if they seek permission to sell the person’s property. The deputy will be able to take full control of the persons affairs and when making decisions for that person, be expected to take into account the five key points of the Mental Capacity Act. The deputy should, where possible, involve the person with any decision making and always ensure they act in the person’s best interests at all times.

Do I need to record my actions as a deputy?

Yes, record keeping is essential when dealing with a persons property and financial affairs. The deputy would be expected to complete an annual account which is submitted to the Court of Protection and this account will show what monies you have received on behalf of the person and what monies you have paid out on their behalf. This could also include showing proceeds of sale of a property or closure of bank accounts, and how the funds have been invested. It is essential that all accounts are kept in good order as the court does at intervals ask to see proof, such as bank or building society statements.

Do deputyship orders expire?

Deputyship orders do not have an expiry date on them. They would only end if the person to who it relates to has died or regained capacity the deputy has died or has lost mental capacity the deputy wishes to retire and appoint someone else there is evidence of financial abuse and the order is revoked by the Court of Protection.

What do I do if I think someone is abusing their role as deputy?

If there are concerns a deputy is abusing their power or they are making both financial and welfare decisions that are not in the best interests of the person whose affairs they are responsible for then this needs to be reported to the Office of the Public Guardian.

I am deputy for someone who doesn’t have a Will – how do I get one for them?

If they don’t have the capacity to make a Will the deputy will need to apply to the Court of Protection to make a statutory Will. A statutory Will ensures that the person’s wishes can be met, such as gifts left to loved ones or favoured charities. An emergency application to the Court of Protection for a statutory Will can be made they only have a short time to live.

What is a Statutory Will?

A statutory Will is made and signed on behalf of a person who lacks the capacity to make one themselves. An order of the Court of Protection is required before it can be signed.

What is the process to apply for a statutory Will and how long does it take?

An application must be made to the Court of Protection for an order authorising a person to sign a Will on behalf on another. The process starts with an assessment of mental capacity of the person the Will is being made for, before forms are completed with details about that person’s estate (such as property, savings and possessions), their family and any existing Will they may have. Assuming the application proceeds without a need for a hearing or any objections it can take around six months.

Who needs to be told about the statutory Will application?

Anyone who would stand to inherit from the estate before the statutory Will is signed must be informed of the application. They can lodge any concerns or objections to the application which the Court of Protection will consider. Also, any other family members, friends or carers of the person to whom the application relates should be informed.

What happens when the court approves the draft Will?

The applicant then has the authority to sign the Will on behalf of the other person. A copy is lodged with the Court of Protection.

What is NHS continuing healthcare?

NHS continuing healthcare (NHSCH) is a package of on-going care that is arranged and funded solely by the NHS where the individual has been found to have a primary health need as set out in the National Framework. The NHS is responsible for providing all of the individual’s assessed health and social care needs including accommodation, if that is part of the overall need.

Should I be paying care home fees?

You shouldn’t pay care fees if you have a primary health need which is set out in the national framework.

What is a ‘primary health need’?

A ‘primary health need’ means that the main or primary need for care must relate to the health of the individual. This doesn’t depend on a specific health condition or illness, who provides the care or where the care is provided.

How does the NHS establish whether an individual has a primary health need?

The NHS continuing healthcare assessment takes into account the individual’s needs across 12 care domains and considers the nature, intensity, complexity and unpredictability of their needs. Each of these characteristics may, in combination or alone, demonstrate a primary health need, because of the quality and or quantity of care required to meet the individual’s needs.

How is the assessment for NHS continuing healthcare carried out?

The first step is for a checklist tool to be completed. This is a screening tool to help identify individuals who should be referred for full assessment. This checklist can be completed by a variety of health and social care practitioners. It can be completed in a hospital prior to discharge, in an individual’s own home or in a community care setting.

What's the difference between health care and social care?

Social care is providing assistance for daily living activities, for example helping to get washed and dressed. Health care is everything medical.

I applied for NHS continuing care, but didn’t qualify. Can I appeal?

If an application for NHS continuing healthcare is rejected this can be challenged through the appeals process. The formal responsibility for informing individuals of the decision about eligibility for the NHS continuing healthcare and their right to request a review lies with the relevant Clinical Commissioning Group (CCG).

Can retrospective NHSCH claims be brought?

Yes. However, in 2012 the Department for Health introduced deadlines for claims for unassessed periods of care to put a stop to claims going as far back as 1 April 2004. As things stand, it is unlikely that the CCG will allow the period of the claim to go back further than 1 April 2012.

How long will a NHSCH claim take?

The national framework states that the time between the initial checklist being received by the CCG and the funding decision being made should, in most cases not be more than 28 days, less, if the fast track pathway is followed. However, retrospective claims by an executor can take years to complete due to the high volumes of these types of claims.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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