Three problems associated with not having made lasting powers of attorney

1. Decisions about where you live are made by the Local Authority

You might want to be looked after at home for as long as possible rather than move into a care home and your family might know this but in the absence of a Health and Welfare LPA family members (including spouses) have no authority to make decisions on your behalf. The incredibly stretched social care budget means it is inevitable that the Local Authority is forced to make decisions with at least one eye on finances. If you own and occupy your main residence and have limited savings, there is often financial advantage for the State in choosing to care for you in a care home over care at home to ensure your property (or its proceeds of sale) is available to pay your care fees, rather than the State footing the bill.

2. Your family might not be able to attend medical appointments with you

Whilst you retain capacity you can allow whoever you want to attend medical appointments with you and give permission to your GP/the NHS to share information with whomever you choose. However, that permission cannot last beyond your lack of mental capacity unless you have appointed appropriate people under a Health and Welfare LPA. If a doctor was to allow, for instance, your spouse or child to attend an appointment with you they would be breaching patient confidentiality and cannot do so. Likewise, they cannot release information to others about your condition or treatment.

3. There is no automatic right for your spouse or loved ones to be able to manage your finances

A Property and Financial Affairs LPA allows you to choose who will manage you financial affairs in the event you lost capacity in the future. It also allows you to set appropriate parameters around this, for instance, the order or priority of people that will act, whether one can make decisions alone or they need to agree, including restrictions on what those acting for you can do, providing guidance as to your wishes in a variety of circumstances etc.

If you do not have this type of LPA and lose capacity, there is no automatic right for a family member or anyone else to act and it is necessary for the Court to appoint what is known as a Deputy to manage your financial affairs. Although usually the Court will appoint a close family member, this involves a complex and expensive application process and acting as a Deputy is considerably more difficult than acting under an LPA. The Deputy needs to submit annual accounts and a report to the Court, take out insurance against the risk of acting improperly and make ongoing Court applications in respect of more significant decisions, for example, selling and buying property. As well as the significant costs involved on an ongoing basis, almost all of which are avoided by their being a suitable LPA, the role of a Deputy is often onerous and frustrating as the Court is slow to make decisions. Making an LPA removes almost all this bureaucracy.

Please contact Jerome Dodge if you would like to discuss making LPAs or review your existing arrangements.