Lasting Powers of Attorney
If, during your lifetime, you lose the ability to make decisions for yourself you would undoubtedly want some reassurance about who would be making those decisions on your behalf. Who, for example, would operate your bank accounts and pay your bills if you did not have capacity? Arguably as important as a will, a Lasting Power of Attorney (LPA) should form part of your overall succession planning ensuring all your affairs are in order should the worst happen.
If you have not made any provision for this eventuality in your lifetime, someone on your behalf, perhaps a close relative, friend or solicitor may apply to the Court of Protection to be appointed as your ‘Deputy’. The application process for appointment as Deputy can take several months to conclude and the costs can be high.
The simple alternative is to decide now who you trust to make decisions on your behalf by appointing an Attorney. You can appoint more than one Attorney to act in the event of your mental incapacity and set out conditions when they can and cannot act on your behalf.
Matters not Covered
There are some matters an LPA cannot cover. An attorney cannot vote on the donor's behalf, or make decisions relating to marriage, a civil partnership or sexual relationships.
Also, an attorney cannot make or alter a will for the donor, and cannot demand to see a will unless specially authorised by the Court of Protection. In some circumstances this can be awkward: an attorney may decide, quite properly, to sell an item owned by the donor, without knowing that the item has been left by will to a relative. Should a donor be aware of such a possibility, the attorneys should be warned and appropriate details left with them. Alternatively, the section on “ guidance to my attorneys' may include the necessary information
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Advance decision or advance statement
Advance decisions and Advance Statements are the formal names for the two different types of ‘living Will’The term ‘living Will’ does not have a legal meaning but can be used to refer to either an advance decision or an advance statementAn advance decision is a decision to refuse treatment; an advance statement is any other decision about how you would like to be treated. Only an advance decision is legally binding, but an advance statement should be taken into account when deciding what is in your best interests.
Living WillsA Living Will is a statement expressing your views on how you would or would not like to be treated if you are unable to make decisions about your treatment yourself at the relevant time in the future.Legal The Mental Capacity Act 2005 provides a legal framework to help empower people to make their own decisions and to make clear what actions carers and family can take. It puts the law on advance decisions (or living Wills) on a clear statutory basis for the first time. The rules relate particularly to advance decisions to refuse treatment, including refusal of life-sustaining treatment.
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Why make an advance decision ?
You may wish to make an advance decision if you have strong feelings about a particular situation that could arise in the future. This might relate to having a limb amputated following an accident or having a blood transfusion.
More commonly, you may have been told that you have a terminal illness or form of dementia. You may wish to prepare an advance decision indicating the type of treatment you would not want to receive in the future. Making an advance decision may give you peace of mind knowing that your wishes will not be ignored if you are unable to take part in the decision-making process at the relevant time.
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