Barker Gotelee

Many of us have senior moments where our memory lets us down briefly, but what if the effects of illness or an accident leaves us unable to make decisions for ourselves?

We take great care in deciding how we would like our assets to be distributed and dealt with after we have died by making a Will.  However, we seem more reluctant to confront the possibility that we may lose mental capacity during our lifetime, and find ourselves unable to make our own decisions.

If you lose mental capacity, a member of your family or someone close to you would need to ask the Court of Protection to appoint a ‘Deputy’ to deal with your affairs.  The Deputy may be given powers to deal with your financial affairs as well as your personal welfare.  The Deputy would often be a member of your family, but the Court may also appoint a professional, for example a solicitor, instead.  The application is time consuming and expensive and from then on the Court of Protection will be involved in your every day life as it is required to monitor your Deputy.

A simple way of avoiding the Court of Protection getting involved in your affairs is to make a Lasting Power of Attorney (LPA).

There are two types of LPA.  These can relate either to your ‘Property and Affairs’ or to your ‘Personal Welfare’.

A Property and Affairs LPA allows you to appoint attorneys to manage your financial affairs.  Your attorneys would be able to manage your bank accounts and deal with utility companies etc when you are not able to.  Your attorneys are also able to make decisions about selling your home.  This type of LPA can be used whether or not you have lost mental capacity, but if you have mental capacity your attorneys would need to consult with you before they make any decisions.

A Personal Welfare LPA allows your attorneys to make decisions in relation your healthcare and personal welfare.  These include decisions about your living arrangements and day to day care, but your attorney can also give consent concerning the medical care that you receive.  Unlike the Property and Affairs LPA, a Personal Welfare LPA can only be used after you have lost mental capacity.

If you feel strongly about the medical treatment that you receive, another option is to make an ‘Advance Directive’ or ‘Living Will’.  This authorises doctors to withhold treatment from you if you are gravely ill and there is little or no prospect of you recovering to have a good quality of life.  If you have made an ‘Advance Directive’, your doctors must follow this.

Suzanne Whyman

© Barker Gotelee