Do you know wDo you know who will take control if you are no longer able to do so?ho will take control if you are no longer able to do so?

Usually, if you wish legally to appoint someone else to manage your affairs, you can provide a General Power of Attorney. However, this ceases to be valid if the person giving the power (the donor) becomes incapable of managing their own affairs. So who takes control if you are no longer able to do so?

A new type of power was introduced by the Mental Capacity Act 2005 called a Lasting Power of Attorney (“LPA”) (which has replaced the Enduring Power of Attorney), called as such because it “lasts” past the point that the donor loses mental capacity.

There are two types of LPA, one in relation to the donor’s property and financial affairs and another in relation to their health and welfare. An LPA for Financial Affairs gives an attorney the authority to deal with a donor’s property and financial affairs as specified. An LPA for Health and Welfare allows an attorney to make welfare and healthcare decisions on a donor’s behalf when they no longer have capacity to do so, and can extend to giving or refusing life-sustaining treatment, so it can be really useful if you have specific wishes in this regard.

Accordingly, it is important that a donor thinks carefully about who they wish to have as their attorney, as they will be making important decisions on a donor’s behalf. It is a way to ensure that the people you trust will be able to make important decisions for you if you become mentally or physically unable to do so yourself.

While LPAs are most often used to deal with the affairs of the elderly, if they are prepared much earlier in life they will give the same protection in the case of incapacity due to an accident or illness. An LPA does not restrict your right to control your affairs for as long as you feel able, it just means there is someone else to take over if required.

If there is no LPA in place and the donor’s mental capacity has failed, then all is not lost! The alternative is to apply to the Court of Protection in order to appoint a Deputy to manage the person’s affairs, although this can be time-consuming and certainly more expensive to arrange, than putting an LPA in place.

For further information on this, please do contact me by telephone on 0208 858 6971 or by email at: kp@grantsaw.co.uk

This is not legal advice; it is intended to provide information of general interest about current legal issues.