Why you should agree Power of Attorney with older relatives
The benefits of making a will are well known to members of the public, as it enables someone to ensure that their wishes are carried out after they die, but what is less known is the benefit of making an Enduring or a Lasting Power of Attorney.
If someone has difficulties that mean they cannot make decisions anymore, they will need help managing their finances and/or their health issues. A lasting Power of Attorney (LPA) is a legal document, where someone (while they still have mental capacity) nominates a trusted friend or relative to look after their affairs if they lost capacity. There are two types of LPA: one for finance and property and another for health and welfare.
What happens if your relative does not create an LPA?
If an LPA has not been made and that authority has not been given, the only alternative is to apply to the Court of Protection for the appointment of a person called a Deputy. A deputy is a person appointed by the Court of Protection to manage the affairs and make decisions on behalf of the incapacitated person. The Court of Protection has received some critical press, but the key reason to avoid it is the fact that it is genuinely so much easier to deal with someone’s affairs who has as Power Of Attorney in place rather than not. Dealing with a Deputy is expensive and can be time-consuming. Unless it is urgent, it can take six months to appoint a Deputy successfully and if a law firm is instructed, it is then necessary to deal with the legal costs and court fees as well. Not only is the Deputy responsible for the day-to-day management of the Patient’s financial affairs, but s/he must be aware of, and respond to, essential issues at different stages of the patient’s life. So not having an LPA means things are far more complicated.
Importantly, someone can only set up a Lasting Power of Attorney when they have mental capacity. Once you have lost capacity, it is simply too late. A solicitor must interview the person wanting to create an LPA to assess they still have the mental capacity to decide.
In addition, the process of making an LPA can help prompt broader discussions with your parent’s family or others about his or her future wishes. It is always better to have these discussions within a calm environment when everyone involved has the time to focus.
For all these reasons, it makes perfect sense for someone to make a Lasting Power of Attorney.
How can you persuade your parent to make an LPA?
One of the difficulties with creating LPAs can be resistance from your relative. This is understandable, as people do not want to have discussions about what happens if they lose their facilities, or when they are going to die. So how can you overcome this?
Top tips for having LPA discussions with your parent
If you are going to conduct those discussions with your parent, you may want to consider the following:
- Be prepared for your discussions. Bringing up this subject matter is not easy. Think about what you will say and how you will say it and when. When I negotiate, I try to visualise a successful outcome and work my way back from this. Preparation with a positive outcome in mind is key to enabling relatives to provide the necessary consent willingly.
- Try to project reassurance. Elderly people (or indeed anyone) can be concerned about discussing something which they are afraid of, namely their loss of faculties. You must be sympathetic in recognising this potential distress, by pointing out that this is something that everyone might eventually need.
- Have good knowledge of your subject matter. Read up about Power of Attorneys and what it entails. This will give you a springboard for dealing with any questions or queries, be they legitimate or not. It will also help you to stay calm and composed and address any objections in a factual manner.
- Listen. As an experienced mediator, I find the best way for me to communicate is often to be quiet and try to understand where the objection is coming from. It may not be necessarily for what you think. I am often surprised how much I learn, the quieter and more open I am.
- Don’t rise to any provocation. Dealing with family issues is potentially difficult for all of us. If your relative(s) start winding you up, do your best to maintain composure. It really will pay dividends.
If you are not comfortable having those discussions yourself, consider using a trusted friend or a trusted advisor to talk with your family. Frankly, there is merit in using a solicitor with skilful negotiation skills, who is independent and has the credibility to address any objections. Ideally, he or she can bring a family with the differing interest and views together. Given the stress which family members can find them under,the trusted advisor may be the best way to go to minimise the prospect of conflict in these difficult times.
Registration and costs
It costs nothing to draw up a lasting power of attorney, unless you want a solicitor’s help – but in England, Wales and Scotland you have to register it before you can use it.
In Northern Ireland you can use it without registering it while you still have mental capacity, but you have to register it as soon as your mental capacity starts to decline.
It’s best to register as soon as possible. This is because during the registration process the document will be checked for errors.
If you catch them while you can still manage your affairs you can correct them – if not, your power of attorney might be invalid.
- England and Wales: £110 for each lasting power of attorney.
- Scotland: £70 for each power if you register them separately, and £70 if you register both at the same time.
- Northern Ireland: £115 for each enduring power of attorney.
The fee may change so it’s a good idea to check when you register.
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Justin Patten is principal at Human Law and is a solicitor and a mediator on elderly client issues.