Losing capacity

‘Losing capacity’ or ‘loss of capacity’ are terms used to describe a person who is struggling or unable to make a clear decision for themselves.  This can be due to a number of reasons for example, following a diagnosis of dementia or Alzheimer’s, a period of illness, a stroke, heart attack or an accident.

There are provisions you can put in place to protect you known as ‘Lasting Powers of Attorney’.  These are legal documents which enable you to choose who you would wish to deal with your financial affairs and make decisions on your behalf about your welfare if you become unable to do so.

When do I need to make a Lasting Power of Attorney

As Lasting Powers of Attorney must be made in accordance with legal rules it is important to set these up while you have the capacity to understand the documents and the powers you are making.   There is often a misconception that Lasting Powers of Attorney only need to be made when things start to go wrong. However, it is often too late once that stage has been reached, which may then result in a complex application to the Court of Protection and you would not be able to choose who is appointed to act for you. We therefore recommend that everyone considers putting in place Lasting Powers of Attorney, whatever their age, so that their Attorneys are ready and able to act should they ever be needed.

There are two types of Lasting Powers of Attorney (LPAs):

• Property & Financial affairs
  This type of LPA allows you to choose someone to make decisions about money and property for you.  For example, your Attorney would be able to pay utility bills, collect your benefits, withdraw cash for you or sell your home if you needed to go into residential care.  Your attorneys can act either with your permission or should you lose capacity. 

• Health & Welfare
  This type of LPA lets you choose someone to make decisions about things like your daily routine (e.g. what to eat and what to wear), where you should live, whether to give or refuse consent to routine medical treatment, and even (if you wish), to make decisions about life sustaining treatment.  Your attorney can only act should you not be able to make these decisions yourself.

Who can be my Attorney?

Under a Lasting Power of Attorney, you can appoint trusted family members, friends or a professional, such as a solicitor, to assist you as your attorneys.  Being appointed as an Attorney is an important role, with many duties and responsibilities to manage. The most important factor when choosing an Attorney is to appoint someone who you can trust and who you are confident will act in your best interest. 

For some, family or friends may not have the time or energy to take on this significant role, or you may simply not have anyone in your life able to take on this task.

We are experienced in acting as attorneys for clients and already support many local people who have either lost capacity or simply struggle to manage their day to day affairs due to frailty or illness.  We are familiar with the obligations and duties of Attorneys, are fully regulated and audited and can offer you the peace of mind of knowing that your affairs are in safe hands.

We can help

You can choose to make either one or both types of Lasting Power of Attorney.  We offer a complete service which would take you through the options available to you and the paperwork involved to make sure that you get it right.  The documents will need to be registered with the Court known as the ‘Office of the Public Guardian’ before they can be used in the future. We therefore deal with the whole registration process on your behalf so that they are ready to be used as soon as they are required. 

Enduring Powers of Attorney

If you made a Power of Attorney prior to October 2007, it is likely that this is an Enduring Power of Attorney.  The law changed in 2007 and since then Enduring Powers have been replaced by Lasting Powers of Attorney. However, in most cases, Enduring Powers of Attorney are still valid.

If you are named as an Attorney in an Enduring Power of Attorney, and you think that the person who made the document is, or is starting to become, unable to manage their own affairs, you are required to apply to the Office of the Public Guardian to register the document before you can use it.

We can help

Checking whether your Enduring Power of Attorney is valid

We are very happy to provide a free checking service to give you peace of mind that your Enduring Powers of Attorney arrangements are still valid.

Registration of an Enduring Power of Attorney

We can help attorneys through the process and manage all the legal formalities on your behalf.

We can advise on the requirements of the role of an Attorney and help to ensure that they are fulfilling all legal obligations.

Making an Advance Decision (formerly known as a ‘Living Will’)

An Advance Decision enables you to set out your wishes in relation to medical and life-sustaining treatment should you become unable to express those wishes yourself.  In particular, these are commonly made by people who have been diagnosed with an illness from which they know they will not recover.

We can help

If you are worried about making sure that your wishes are known should you become very unwell, we can advise you on how best to do so.