Lasting Power of Attorney: What residents should have in place before moving into residential care
Going into residential care can be a very stressful prospect, not only for the person in question but also for family and friends who have their loved ones’ best interests at heart. With this in mind, what should potential residents think about having in place before they move into residential care to make the process a little less daunting?
Whilst the need for a Will is familiar to most, the concept of a Lasting Power of Attorney (‘LPA’) is something that remains relatively unheard of.
What is a Lasting Power of Attorney?
The person making the LPA is called a donor, whilst the person appointed to act on their behalf is known as the attorney. When the donor makes and registers an LPA, they are effectively giving the attorney legal authority to act on their behalf in the event that they can no longer make decisions for themselves.
In order to make a power of attorney, the donor must be capable of making decisions for themselves at the time when they appoint an attorney.
Anyone can appoint an attorney but making an LPA is especially important where the donor has been diagnosed with, or thinks they may be likely to develop an illness which could affect their mental capability at some point in the future.
An LPA cannot be used by the attorney unless the donor has lost mental capacity or they no longer wish to make decisions for themselves though the former is when an LPA would most commonly be relied upon.
There are two types of LPA available:
- Property and Financial affairs:
- This gives the attorney authority to deal with and make decisions about things like buying and selling property, financial accounts, welfare benefits or tax credits, tax affairs and debts.
- Health and Welfare:
- This gives the attorney authority to deal with and make decisions about things like where the donor lives, day-to day care, healthcare and what contact, if any, the donor should have with other people.
The donor can appoint the same attorneys under both types of LPA, or different attorneys for each type of LPA. Whilst recommended, it is not necessary to have both LPA’s in place.
How can an LPA help?
A Health and Welfare Lasting Power of Attorney in particular would allow the attorney to make crucial decisions about where the donor will reside, including whether or not they should move into residential care and if so, where would be most appropriate.
Without an LPA in place, an application to the Court of Protection would be required and if the donor is deemed not to have mental capacity, the Court may appoint a deputy to make decisions on the donor’s behalf. However, due to the drawn-out and expensive nature of this process, it is highly recommended that a lasting power of attorney be appointed whilst it remains an option.
If you wish to discuss any of the issues raised in this article with one of our specialists, please contact Zalena Vandrewala or Alex Nicholls on 01782 202020.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.
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