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Dawn Joughin on the legal implications of dementia

The recent sad news that former footballer, and TV presenter, Jimmy Hill is suffering with dementia has brought the law relating to Powers of Attorney to the forefront of the news.

Sadly it is not uncommon for family members to fall out over the appointment of Attorneys and Court appointed Deputies, as seems to have happened to Jimmy Hill's family.

Most people are aware of Lasting Powers of Attorney (LPA), but there is often confusion about how they work, and the difference between an Attorney and a Deputy. A Power of Attorney is a legal document whereby one person, the Donor, appoints another person(s) as their Attorney, enabling their Attorney to make certain decisions on his or her behalf.

There are two types of Lasting Power of Attorney (LPA):

The first type enables your Attorney to manage your property and affairs, and they can do this as soon as the LPA is registered, while you still retain capacity, on the basis of the instructions you provide to them. The ability to continue to manage your property and affairs continues even when you lose capacity.

The second type enables your Attorney to make health and welfare decisions on your behalf, but this is only valid when you have lost capacity and are unable to make decisions relating to your health and wellbeing, for example the type of medical treatment you will receive and where you will live.

In order to make an LPA you must be aged 18 years or over. Have mental capacity i.e. be able to understand the full extent of the power you are donating to your attorney, and be free from any undue influence or duress. It is important to bear this in mind when there is a dispute. A Donor chooses, while in full possession of their mental faculties, their Attorney, who will make decisions on their behalf in the future, in the event they lose capacity and are unable to make decisions and act in their own best interests.

Why should Lasting Powers of Attorney matter to me?

I cannot stress enough the importance of making an LPA. Making an LPA ensures you appoint the person(s) you believe are best able to act on your behalf and to make the decisions you would make for yourself, if you were still able to. This can be difficult when there are children from several marriages, and step parents are involved.

It is important to remember however, your Attorney is legally obliged to act in your best interests, and in accordance with any guidance or restrictions you have included in your LPA. Making an LPA ensures any family differences of opinion as to the type of treatment you will receive, does not create problems, or delays, as your Attorney(s) has authority, in accordance with your instructions to make the appropriate decisions on your behalf.

If you lose capacity and have not made an LPA, then it becomes necessary for someone to apply to the Court of Protection for an appointment as your Deputy. Such applications may be contested, and sadly often are, which can lead to delays, and financial loss, while the appointment is argued out in the Court of Protection. An application to the Court of Protection is also far more costly than making a Lasting Power of Attorney.

Make sure you take advice sooner rather than later from an appropriately qualified professional with experience in this area of law. The Private Client Law department here at Canter Levin & Berg Solicitors can provide professional legal assistance when it comes to drafting a Lasting Power of Attorney, or with any other legal queries you might have regarding preparations for later life and your estate. To find out how we can help you call 0151 239 1181 today to arrange a consultation with one of our Private Client Lawyers.

By Dawn Joughin