.
3) How will my attorneys know whether I have mental capacity or not? What if it isn’t clear-cut?
Answer: It is not a case that you will either have mental capacity or have lost capacity; there is no red line that you cross. Instead the Mental Capacity Act 2005 which governs LPAs, makes it clear that it is a matter of whether you are able to make the particular decision in question at that particular time. In addition, your attorneys must assume that you can make your own decisions unless it is established that you are unable to do so and they must help you to make as many of your own decisions as you can.
If it isn’t clear-cut, your attorneys can try to help you make the decision at another time, or consider other factors such as whether you have made decisions on similar issues in the past. If it is becoming difficult to decide whether it is time for an attorney to step in or if the decision is particularly significant, we would often advise your attorneys to involve a mental capacity expert who will carry out an assessment focussing on the decision that needs to be made.
4) Are there any restrictions on what my attorneys can do and can they sell my house?
Answer: LPAs give your attorneys wide-ranging powers so they can step into your shoes to manage your affairs. The first thing an attorney should check when they start using an LPA is whether the person making the document included any restrictions. If they did, these will need to be adhered to and may mean that an action cannot be taken without getting authorisation from the Court of Protection.
If there are no restrictions, the attorneys have more flexibility and could sell your house if required. However, they should only do so if you cannot consent to the sale yourself and, if after careful consideration, they decide that the sale is in your best interests. If, for example, you were no longer able to manage at home and funds needed to be raised to pay for long term residential care, the LPAs provide the legal authority for your attorneys to market the property, instruct solicitors and sign the legal documents for the sale on your behalf.
5) I’m too young to make LPAs. Can I wait until I start to lose capacity and put them in place then?
Answer: Although we assist clients of all ages with LPAs, including those in the early stages of dementia, we would always advise putting your LPAs in place well in advance of any deterioration in your mental capacity. You are making important decisions about who you would like to manage your finances and to make crucial health and care decisions, so giving the matter careful thought is essential.
It is not only the old that suffer from the loss of mental capacity, accidents happen and a well drafted LPA can be incredibly helpful for your loved ones when it comes to dealing with the issues that will inevitably arise.
We believe LPAs are as important as Wills and should be part of everyone’s lifetime planning.
Once made, the registered LPAs can be stored away safely until they need to be used, but you will have the peace of mind that the documents are signed, registered and ready to be used should they be needed.
