WHO WILL MAKE DECISIONS ON YOUR BEHALF; THE GOVERNMENT OR YOUR FAMILY? – YOU DECIDE

17 Dec 2009

There has been much in the press recently about the government gaining access to the funds of the elderly and vulnerable says Emma Myers, a Private Client Solicitor at Batchelors. The Mail on Sunday on 26 October contained the headline "Secret court seizes £3.2bn from elderly...and even forces furious families to pay to access own bank account". As a result we have received many calls to our offices from clients concerned about their own affairs and what they can do to protect themselves and their family.

The article talks about how those at risk are those without a Lasting Power of Attorney or Living Will. These individuals do not have anything set up which gives power and authority to someone else to assist them if they are unable to deal with matters themselves: if so Local Authorities may have the power to step in and make decisions on behalf of the individual.

If you become unable to look after your own affairs, your relatives can apply to the Court of Protection to be appointed your Deputy to deal with your financial affairs on your behalf. However, this is a lengthy and costly process and can sometimes leave individuals feeling guilty and ashamed about their efforts to help out. They may also be embarrassed as they fill in bulky forms confirming their own fitness to look after their loved one. Shadow Justice Minister Henry Bellingham comments that "It appears the system is set up with the assumption that people's close relatives do not have their loved one's best interests at heart". There are some occasions when the loved one is too late and the Local Authority has already stepped in and taken control of the individual's affairs.

If you are successful in being appointed a Deputy there are annual supervision fees of up to £800. It is likely that your authority will be restricted and you still need to apply to the Court to make certain decisions, with another application fee to be paid. Additionally, it is almost impossible to be appointed to act as a Deputy in relation to someone's personal welfare. This leaves those important decisions such as healthcare and where the person should live, to the Social Services or Healthcare professionals to decide. The result of this is that a loved one could end up in a care home that you would not want or even worse being refused access to residential care and being left without care and assistance.

All those looking into this area, including the Government, the Office of the Public Guardian and Charities, say that everyone should now make a Lasting Power of Attorney (LPA). LPAs come in two forms - one that deals with Personal Welfare and one that deals with Property and Affairs. They allow you to appoint someone (or more than one person which is advisable if your property is jointly owned and your Attorney is the co-owner) to act as your Attorney. You can also appoint replacement Attorneys should your original Attorney be unable to act. This defends you from being left unprotected if your Attorney dies before you. So, for example, as a couple you could appoint each other as your Attorneys with your children as replacement Attorneys. It is possible to have professional Attorneys if you have a Solicitor or Adviser who you trust. A female Solicitor in our office is Attorney for a number of elderly clients who either have no family nearby or who do not want to burden their friends with the responsibility.

The LPA needs to be signed by the person giving the power and then by someone (either a professional or someone who has known them for 2 years) who confirms that the person giving the power has capacity to do so and understands what they are doing. Once signed they need to be registered with the Office of the Public Guardian before they can be used. A Personal Welfare LPA can not be used in any event until the person has lost capacity.

LPAs should therefore not be something to consider when you get to a certain age, but something that everyone should do as soon as possible. An article in the Saga magazine in May 2007 written by author Heather Bateman detailed the problems she had when her husband was hit by a motor car which left him in a coma and she needed to apply to the court before she could pay her daughter's University fees.

LPAs should be considered in the same way as Insurance Policies are, with the exception that LPAs are formed with a one off expense rather than an annual premium. Once set up they will we hope sit in safekeeping for years and never be used; but if they ever are needed they will be invaluable.
If you require any further information or assistance please call Emma Myers at Batchelors Solicitors on 0208 768 7092 or mail to emyers@batchelors.co.uk.

These notes are produced by members of members of the Private Client Department and are for guidance only and do not remove the need to take professional legal advice in all circumstances. No responsibility will be accepted for any losses occasioned as a result of any actions taken or refrained from due to their contents.