• “Enduring Powers of Attorney” and “Lasting Powers of Attorney” can be invaluable when dealing with mental capacity issues within a family
  • There are two types of Lasting Power of Attorney – “Property and Financial Affairs” and also “Health and Welfare”
  • Lasting Powers of Attorney can only be put in place where an individual has the required mental capacity. They must be registered with the Office of the Public Guardian before they can be used
  • Where an individual doesn’t have the required mental capacity, an application could be made to the Court of Protection to appoint a Deputy

I receive a telephone call from one of my existing clients Emily Smith, for whom I have previously done some estate planning work.

Emily tells me that she is getting increasingly concerned about her parents, Bob and Sheila, and was hoping that I could give her some advice. Her parents are now quite elderly and her father Bob seems to be getting increasingly confused. Her father doesn’t seem to be managing financial matters very well (he was always very capable in the past) and when she last went to see them, she spotted a stack of unpaid bills and reminders. She wants to help but is not sure how to deal with this and is worried about her parents deteriorating further. In particular, she tells me that her father is very proud and that any suggestion that he isn’t coping will need to be dealt with diplomatically.

This is a very difficult situation, but one which is becoming all too common. From my point of view, I first need to establish who are my clients; after all, while I can discuss matters generally with Emily, it is really her parents who need the advice. I suggest that I have a conversation or meeting with Bob and Sheila as soon as possible.

The first step for me when advising Bob and Sheila is to establish whether they have ever previously made a power of attorney which might enable Emily to act on their behalf. The law surrounding powers of attorney has changed a lot in recent years, and I would want to know if they had made Enduring Powers of Attorney (or EPAs) before October 2007 or Lasting Powers of Attorney (LPAs) since then.

Both EPAs and LPAs need to be registered with the Office of the Public Guardian, and so if Bob and Sheila do have those documents in place, I will advise them, and Emily, on the procedures to be taken to register them. However, if Bob and Sheila have not made any kind of power of attorney before, I will advise them of the benefits of doing so now.

New EPAs can no longer be made (though old ones are still valid) and so I would be talking to Bob and Sheila about LPAs. As Emily has pointed out, broaching this subject with clients can be difficult, and in my experience highlighting the benefits of LPAs and the peace of mind they bring is usually the best way to open the conversation. However from a legal point of view, my main concern is whether Bob and Sheila have the mental capacity to sign an LPA.

For an LPA to be valid, the person making it must understand the nature of the document they are signing and its effects. In order to guard against LPAs being made fraudulently, the standard form must be countersigned by someone who will certify that the person making the LPA does indeed understand it. If I am unsure about the person’s understanding, I will often ask their permission to involve their GP in the discussions.

If I am satisfied that Bob and Sheila are able to make LPAs, the next step is for me to explain to them that there are two types of LPA, one dealing with Property and Affairs and the other dealing with Health and Welfare. An LPA is a way of delegating decisionmaking to someone else, and I need to understand what sort of decisions it is that the person wants to delegate. It sounds as if Bob and Sheila need the Property and Affairs LPA, but after discussions with them, they may decide that they would like Emily to take health and welfare decisions as well.

Having established the type of LPA, the most important question is whom to appoint as the attorney(s). This can require careful consideration, and I must be careful not to assume that Bob and Sheila will want Emily to be their attorney. I will always try to see clients on their own so that I know they are not being put under pressure to appoint a particular person. I will then take Bob and Sheila through the remainder of the LPA form, seeking their instructions on a number of issues relating to the document.

So far I have assumed that Bob and Sheila did have the capacity to make their LPAs. But what options would have been open to Emily if they did not? If I or the doctor thought that Bob and Sheila lacked capacity then they would be unable to delegate decision-making by way of an LPA. Instead, Emily would have to apply to the Court of Protection for an order appointing her as Bob and/or Sheila’s “Deputy” which would give her broadly the same powers as an attorney.

The application process to the Court of Protection can be long and expensive, and so it would be far better to make the LPA if at all possible; this reasoning might be helpful when persuading Bob that it is better to allow Emily to look after his affairs from now on.

Questions surrounding capacity, and the delegation of decision-making can be complex, but if the right steps are taken in good time by families, much expense and delay can be avoided in future.