Partner and Solicitor, Lucy Craig offers comprehensive advice on the making of a Lasting Power of Attorney to ensure that you can decide in advance who will look after your finances and make decisions regarding your health in the event of your physical or mental incapacity.
You are able to appoint an attorney of your choosing to act on your behalf if you lose capacity in the future. You can set out your wishes for a person who knows you well to hold your Lasting Power of Attorney and give them authority to make decisions about your health, welfare and other matters. The important thing is to make sure that person knows what you would want in different situations.
Lucy Craig can answer all of your questions about the extent of powers you can grant to a third party and how those powers can be checked or limited or indeed revoked to suit your own personal circumstances.
Unless the matter is unusually involved or complicated we charge a fixed price for the preparation of a Lasting Power of Attorney.
If you have an Enduring Power of Attorney or you are appointed as an Attorney under the terms of an Enduring Power of Attorney and the person who made the document starts to or has lost their mental capacity then this document before it can be used has to be registered with the Office of the Public Guardian. We can undertake this process for which we charge a fixed fee.
In the event that mental incapacity has already occurred in a person who would otherwise have executed a Lasting Power of Attorney, we can offer full advice about obtaining a Deputyship Order through the Public Guardianship Office.
In the event that a close friend or loved one loses their mental capacity without having already made an Enduring or Lasting Power of Attorney, a Deputyship Order can to be granted by the Court of Protection, enabling a person to act on their behalf.
As a Deputy you would be authorised by the Court of Protection by way of a Court Order to make decisions regarding their property and financial affairs and/or their personal welfare. You can apply to be just one type of Deputy or both. If you apply and are authorised to act as a Deputy you will receive a Court Order telling you what you can and cannot do.
There are certain fees associated with this application together with ongoing annual fees. There are also requirements to report to the Court of Protection on an annual basis and we can advise you on all aspects of this.
Mental Capacity Law – The Mental Capacity Act 2005
The Act sets out five key principles, which make it clear that a person should be assumed to have capacity unless proven otherwise. It provides a `best interest’ checklist for people acting on behalf of others, to make sure they consider the person’s wishes, feelings, beliefs and values – including any written advance statement made by them when they had capacity – and take account of the views of their family and friends.
It gives legal protection, subject to rules and limitations, to carers and professionals who care for someone who cannot consent to this care, and puts in place a special Court of Protection which can appoint deputies to make decisions on behalf of a person if necessary.
The Act also empowers you to make sure your wishes are respected in case you lose capacity in the future:
Advance refusals of treatment
it is already permitted under common law to make a Living Will, setting out your wish to refuse medical treatment, in case you become seriously ill and lose capacity. The Mental Capacity Act establishes this right on a statutory footing also.
However, the right to be able to ask for life- sustaining treatment may be incorporated.
The Mental Capacity Act is important as it empowers patients and gives guidance to doctors, health care teams, and relatives when faced with difficult situations.