It is an unfortunate fact that we can’t guarantee the physical and mental health of our loved ones forever, however much we care for them and look after them. And the older they get the more likely it is that we will play a more prominent role in their care needs. However, increasingly complex data protection laws closely control what interventions we can make, meaning that we need to carefully plan ahead to guard against situations where a person with diminishing mental capacity has to make important decisions when they are evidently not capable of it.
Sadly, people can start to suffer from forms of dementia in later life, while strokes are a similarly common form of losing mental capacity, sometimes temporarily. There are many different grades to how severe dementia or a stroke can be, as well as other illnesses and injuries which can impact upon mental capacity, but in all situations it is important to have something in place to protect the best interests of the individual.
What is a lasting power of attorney?
One solution to this is setting up a lasting power of attorney (LPA). This is a legal document which allows a person, formally known as a ‘donor’, to appoint one or more people to act and make decisions on their behalf, but only in the event that they can’t do so themselves. These people should be individuals that the donor knows well and trusts, and they are known as ‘attorneys’.
Establishing an LPA at a point where a person’s mental capacity may be failing is a way for that person to retain control of their affairs. It is a prudent form of safeguarding against future issues for loved ones in the event that their health and mental capacity starts to deteriorate, but it is important to understand that an individual retains the right to control their affairs and make decisions, until such a point that it is confirmed that they are unable to continue doing so.
How does a lasting power of attorney work?
Under the Mental Health Act 1983, attorneys in an LPA must abide by a donor’s decisions until they are unable to make these for themselves. A formal capacity assessment will establish when this is the case. This will assess what needs the individual has and what support currently surrounds them, and will also assess where an LPA comes into effect.
- Everyday needs – Where an individual’s everyday needs are being discussed, this can be agreed with a family member or a friend or carer. Essentially this can be someone who knows the individual and visits them regularly, and doesn’t necessarily need to be the attorney listed in an LPA. Such decisions can be relating to how they are washed and dressed whilst in care, what they eat and what daily activities they undertake.
- Complex decisions – Where an individual requires decisions making that are more complex, this is where the attorneys of an LPA will be consulted and involved in the process. This can relate to finances, residential care needs and life-sustaining treatment.
Considerations when making a lasting power of attorney
- Best interests – The most important consideration when creating an LPA is that decisions taken must always be in the donor’s best interests. The person’s individual rights must be respected and the decisions should be the best ones for them, and not what makes life easier for care professionals or other people.
- Consultation – The individual should be consulted and you should try to involve them in the decision-making process, if this is possible and appropriate. Other family members and people who know the individual well, but aren’t listed as attorneys, should also be consulted.
- Meetings – It may be necessary to hold a ‘best interests meeting’, which will collectively consider all issues and hear all views. This doesn’t have to involve the individual themself but should ensure their interests are represented and all sides are considered. It may be necessary to involve a mediator to chair the meeting.
- Improvements in mental capacity – It should be considered that in some cases mental capacity can improve. Dementia sufferers can have good and bad days and can undergo treatment, while stroke sufferers often regain the capacity to make their own decisions, and this should be reflected in how the LPA is enforced.
- Past wishes – If an individual has been explicit with past wishes relating to certain more complex decisions – financial, care, treatment etc – then this should be taken into consideration when later making decisions for them at a point where they don’t have the mental capacity.
Contact Ison Harrison for assistance with making a lasting power of attorney
It can be a very traumatic time when a loved one loses the ability to make their own decisions. This can be difficult to recognise and accept, and can be even more difficult to manage. Making an LPA is the best way to ensure there are controls in place to protect an individual’s best interests and allows them the respect and dignity they deserve, to make these decisions themselves until the point they can no longer do so.
At Ison Harrison we have trained and experienced family law solicitors who can help and assist with setting up a lasting power of attorney and this will help to protect your loved ones at a difficult time for everyone. Contact our team to make an LPA today.
