A lasting power of attorney is a tool that you can use to give someone authority to make decisions for you if, at any time in the future, you lack the mental capacity to do so for yourself. The lasting power of attorney can be used for both financial and medical or care decisions.
In financial situations, the lasting power of attorney can be used for buying and selling property, mortgage payments, investments, ensuring bills are paid, and arranging any repairs that need to be made to properties. When it comes to healthcare, it can cover everything from where someone should be cared for (at home with a carer, in a home, or in a hospice, for example), what kind of care should be provided, and even end of life decisions including continued care.
If you choose to name someone as your lasting power of attorney it must be someone you trust, and with whom you can have meetings to work out what should or should not happen in specific circumstances. In financial situations, whoever is your power of attorney must keep detailed accounts of anything that is spent.
In order to set up a lasting power of attorney, however, you must be in good mental health. This is not something that can be done if your mental capacity is already failing. Equally, you must not have made the lasting power of attorney under duress. It will need to be signed by someone in a professional capacity such as a solicitor, doctor, or social worker. Once this is done, the LPA must be registered with the Office of the Public Guardian before it can come into effect.
The living will has now been replaced by the more secure lasting power of attorney – however, living wills written before 2007 are still valid.
The phrase ‘living will’ rolls off the tongue with ease, and it seems as though script writers enjoy adding it to their murder mystery or FBI investigation programmes with impunity. But although we’re all heard the phrase, and although we might think we know what it means (in terms of the story on TV that we’re watching), there could certainly be nuances that we’re missing.
A living will can also be called a health care directive, advance directive, or physician’s directive. It is similar to a standard will since it is used to write down one’s wishes should something happen – should a specific set of circumstances occur. However, whereas in the case of a standard will that specific set of circumstances is the testator’s death, with a living will it is quite different. As the name suggests, with a living will it is not death that will move the items within it to be carried out, but instead a life that is drastically altered to the one that you were living. If, for example, you were to be involved in an accident that left you alive but in a permanent vegetative state, or a terminal illness that resulted in an end of life coma, the living will could come in to affect.
Not everyone needs or wants to write a living will, but for some the idea of being kept alive solely through machines is a terrifying one, and not something they want to happen to them. A living will will ensure that they are not forced to ‘live’ in such a way. As medical advances continue, death is being pushed further away from many people which, in most cases, is an excellent thing, but when it comes to a case in which death would have been preferable (for the person involved), then the living will can help allow that death to happen.
Through your living will you can instruct medical professionals (at the same time informing your family) that you wish for no ‘heroic measures’ to be taken to keep you alive, and neither do you want any medical intervention including life support machines. The living will can be incredibly specific, allowing you to mention exactly what techniques and medications you would not allow – and the ones you would.
The living will is a way that someone can make their wishes heard when they are unable to speak for themselves. For some, however, the idea of creating such a document sounds like a dangerous thing – what would happen if you were involved in an accident and were unconscious and the living will was invoked even if you could have been saved and gone on to live a perfectly normal life? There is no need to worry about that – the living will is only used when the patient is in a permanent state of unconsciousness. This would need to be certified by medical professionals. Simply being unconscious after an accident would not trigger the living will, and you would be treated as anyone else would in the hospital.
A living will is not something you need to write instead of a standard will; you can have both. However, there is little point in having a living will if no one knows about it – if no one knows it exists, how can anyone action it? So if you do choose to write one, make sure you tell your family about it. Tell your friends. Tell you GP. Tell a solicitor. Make sure that it can be found should anything happen. And make sure that it is drawn up by a professional so that there are no quibbles or questions asked about it. There must be no doubt about what the patient’s wishes are, even if the family does not agree with them.
There are some terms that many people are aware of, but even though they may think they know what it means, they might be a little wrong. One of these terms is ‘next of kin’.
Anyone can be a next of kin – they do not need to be a blood relative, or family member. So although for most people their next of kin is their spouse or partner, they don’t have to be – they can be anyone you choose.
A next of kin does not have any legal responsibilities. They cannot see your medical files, and they have no direct claim on any of your estate or finances. Just because you have named someone as your next of kin on a form somewhere it does not mean that they will be able to run your estate should you be unable to – if you wish this to happen, you would need to prepare a lasting power of attorney and name them (or anyone you choose) in that instead. And just because someone is your next of kin does not mean that they will automatically inherit your estate if you die without a will – unless they are also your spouse, civil partner, or blood relative (dependent on the intestacy rules).
You might need to name a next of kin when you apply for a job, so that, if you get the job and have an accident or incident, the right people can be informed. It is also something required for when you are admitted to hospital, again so that people can be informed of what is happening. In more serious cases, the next of kin may be required to make certain decisions about your treatment. Or perhaps you are keen to try some kind of extreme sport… there will be forms to complete and your next of kin will need to be named. It is always worth considering the name you are writing down. If, for example, your spouse is with you, and taking part in the same activity, and something goes wrong, would it be better if someone else’s name was on the form so that another person can find out what is happening?
Proposed changes to LPAs trigger concerns
The UK government has recently held a consultation regarding proposals to introduce a new, entirely digital system of completing and authorising Lasting Power of Attorney (LPA) documentation.
A Lasting Power of Attorney in effect, transfers responsibility for an individual's daily financial and/or health issues to another nominated person, should they become incapable of making their own decisions. Encouraged by the authorities, there has been a significant rise in the number of individuals seeking to prepare such a document – a rise which has placed significant extra pressure on the Office of the Public Guardian (OPG) which processes the requests.
Currently, a person may draw up an LPA either by hand or electronically – then printing the document, executing it and sending it to the OPG. As part of this process, as with most other legal documents, the LPA must be witnessed.
Should the process be made entirely electronic, no witness would then be required, which of course throws up many questions about the security surrounding such a system. Many legal professionals feel that it would increase the risk of fraud and abuse, as well as potentially causing complications with foreign authorities.
The British Bankers’ Association (BBA) has recently implemented guidelines for all banking staff in England, which should make handling the financial affairs of a loved one much easier.
In the past, the criteria and procedures associated with handling another person’s finances varied from bank to bank. Confusion reigned regarding the documents needed and processes to be followed. Another common complaint was that bank staff often had no knowledge of recognised financial arrangements. Now however, these new guidelines will ensure that the process is standardised across all banks.
For customers with a physical disability but with sound mental capacity, they may require assistance over the short term. In this instance, the helper may simply contact the person’s bank and complete the relevant form for a “third party mandate”. For longer periods of time however, it may be advisable to apply for power of attorney.
If the individual either has limited mental capacity or is looking to plan for this eventuality, then lasting power of attorney rights can be granted to their specific nominated person.
The legal process of registering a Lasting Power of Attorney (LPA) has changed as from 1 April 2013. These changes have been made in order to reduce the amount of time it takes for the Office of the Public Guardian (OPG) to register the LPA.
A Lasting Power of Attorney is a formal way of handing over your affairs to the responsible person of your choice, should you become incapable of doing so yourself, in the future.
From now on, where once it would take six weeks to register, the process should now only take four weeks. Similarly, the period in which an objection can be raised has been decreased from five weeks to three weeks.
New rules have also been introduced which will make it much easier for court-appointed deputies to change their security bond provider, removing the need for them to apply to the Court of Protection. Old bonds will now automatically be discharged after a period of two years.