How to protect your finances with a power of attorney
What happens if you are left unable to make decisions for yourself? Kate Hughes looks at ways to provide for family if tragedy befalls
Saturday 18 June 2011
Mental health and money – arguably the last two great taboos of British culture. Combine them, and it's little wonder that millions of us are failing to protect our financial well-being should we no longer be able to cope.
And yet tragedy strikes on a daily basis. One million people attend A&E with head injuries every year, of which 50,000 are classed as severe, according to the brain injury association Headway. At the same time, more than 130,000 people have a stroke in England and Wales, and around 13,000 people are diagnosed with a brain tumour. Meanwhile, the Alzheimer's Society calculates that there are currently 750,000 people with dementia in the UK, there will be more than 1 million by 2021 and 1.7 million by 2050, it predicts.
"People need to be talking about contingencies before it comes to the crunch," says Andrew Proctor, Head of Knowledge for the Alzheimer's Society. "The earlier you can put plans in place the less scary it is and the more robust you and your loved ones can be. We come across frequent instances where people haven't taken out an Lasting Power of Attorney, families become fractured and the courts have to get involved."
We were relatively lucky, though it hardly feels that way at the time. When my grandmother was diagnosed with Alzheimer's disease – a nasty, traumatising and deeply personal illness that I hope above all things I never fall victim to – we quickly began to put plans in place to look after her while she was still able to understand the process, make her own decisions, and above all, be happy about the arrangements.
And yet, despite the best efforts of the entire family, we discovered that bills were being thrown away, she had energy contracts with several different suppliers and significant sums of money was being withdrawn only to vanish into thin air. To this day we can't be sure if she was ever robbed or if she just left it somewhere.
But we were lucky too because we're a close family and although it was an immensely difficult time, my grandmother's two children worked hard to mutually decide every element of her care. I can't imagine that happens in all families.
The plight of those in care may be a hot topic, but no one seems able to talk personally about the possibility that you won't always be able to cope, or when is the right time to admit that you need help. And fewer still are confident in deciding when they need to assume responsibility for any assets. It's not a fear of being judged as some sort of heartless money grabber by random busybodies. It's about trying to give the person you love as much protection as possible while facilitating every possible sense of empowerment to the very end.
In fact, there are a number of places to get support and information about that one subject you care least about but which is universally crucial – the financial side of mental incapacity. The law is very clear on how to create those all important contingency plans while you can, and even when you can't.
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint up to five people you trust to make decisions for you, either when you are no longer able to, or simply don't want to make those decisions yourself. There are two types, one which deals with health and welfare, and one which deals with property and your affairs.
The document will require you to set out who you wish to become your attorney and how you want them to act on your behalf, confirmed by a certificate provider – someone with the relevant skills can confirm that, in their opinion, you understand what it means and the effect of signing it. This could be a GP, for example, and they must have discussed the implications of the LPA with you without the attorney(s) present. Your attorneys must then also formally state that they understand their responsibilities, and your signature and that of your attorney must be witnessed.
You can either fill in the form yourself or get help to do so, and although legal advice isn't an obligatory part of the process, it is strongly recommended, particularly if complicated instructions around money and property are involved. Once submitted to the Office of the Public Guardian, the executive agency of the Ministry of Justice specifically set up to control the money and assets of those who are unable to do so themselves, there is a six-week period in which any objections can be raised. Only when the £120 fee has been paid and the stamped form returned is it valid.
(Any Enduring Power of Attorney arrangements made before the end of October 2007 are still valid but if you want to make changes, you'll need a new LPA drawn up.)
In reality though, many of us put it off until too late. "The Lasting Power of Attorney is a lengthy document that requires the individual to make a number of significant decisions such as replacement attorneys, any restrictions and who should be given notice of the application," says Michelle Cruddass, a legal executive for Harrowells Solicitors in York. "If they already have an illness which affects their mental capacity, people tend to reach a point where they simply can't manage to decide on those points without becoming confused.
"Most people have heard of the Power of Attorney and often have a friend or family member who has gone through the process but people can and do leave it too late. If they believe they are fine now, the risk is that they can't get a Lasting Power of Attorney prepared quickly or that they deteriorate rapidly, say in the case of a stroke or accident.
"The main difficulty for relatives is that finances need to be dealt with immediately. If their loved one doesn't create an LPA in time, the only option is for someone to apply to the Court of Protection as a deputy. The problem there is that anyone can apply to the Court for appointment and therefore may not be who the individual would have chosen."
Checks and balances
The Mental Capacity Act presumes every adult has the right to make their own decisions and has the capacity to do so unless proved otherwise, and everything possible must be done to help them. Nor can you be treated as unable to make your own decisions if you simply make strange or unwise ones. Any decision made by your attorneys must be ones that impact least upon your basic rights and freedoms and must be made in your best interests.
As well as the six-week initial objection period when an LPA is registered, anyone can apply to the Office of the Public Guardian to find out if someone has an attorney acting for them, and can report any concerns to the Court of Protection, although arrangements may vary in Scotland and Northern Ireland.
Of course there is the fervent, desperate hope that somehow you or your loved one won't get that bad, or at least not yet. They're not ill enough yet – that was our problem. We were constantly looking for a definitive sign that now was the point of no return. And, of course, it never came.
Experts suggest it is time to step in when someone is unable to understand the information they need to make a decision, remember that information, can't use it to help them make a decision or can't communicate that decision.
"For many people, mental incapacity is a step change," says Proctor. "They may feel they are on top of their bills or are managing their finances properly and the difficulty comes in understanding or acknowledging that they are losing capacity. Those around them must keep a close eye on things."
"It's not easy and most people would want to remain independent for as long as possible, but there is often a moment where it becomes clear that they need further support."
* More information about the Lasting Power of Attorney, including application forms can be downloaded from direct.gov.uk, or the Office of the Public Guardian at publicguardian.gov.uk or publicguardian-scotland.gov.uk.
* Age UK offers guides on money matters, including power of attorney at ageuk.org.uk/money-matters.
* Citizen's Advice at adviceguide.org.uk provides consumer rights and legal advice, including family money matters.
* A short leaflet on banking for mentally incapacitated customers is available from the British Bankers' Association, bba.org.uk.
* The Mental Health Foundation mentalhealth.org.uk offers a guide to the Mental Capacity Act and banking.
* The Alzheimer's Association, alzheimers.org.uk, 0845 300 0336 (Monday to Friday) offers help and support on all aspects of dementia.
* The brain injury association Headway, headway.org.uk, provides information and support for those affected by brain injury.
Choosing your attorneys
* Are they over 18, free from bankruptcy and willing to be appointed?
* Can you trust them to act in your best interests?
* Are there likely to be any disagreements between family?
* Do you want to consider more than one attorney?
* Do you want to name a replacement attorney to take over?
* Do you want different attorneys to be appointed for different things?
* Do you wish to limit the attorney's authority?
* Do you wish to include in the LPA a request that the attorney(s) should regularly provide you, your solicitor or another member of your family with details of expenditure and income?
* Do they handle their own money well?
* Would they understand your wishes and feelings about how you would spend your money?
Source: AGE UK
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