What you can do while waiting for Lasting Power of Attorney
Thanks primarily to Covid-19 a backlog has built up affecting those who are trying to set up their own Lasting Power of Attorney. The Office of the Public Guardian has made suggestions for actions that those in England who have the capacity to make their own decisions could do right now to enable others to act on their behalf.
Setting up a Lasting Power of Attorney is a good move at any stage of life. It puts in place attorneys who can act on our behalf if we are unable to make our own decisions for any reason. However, people can be worried that just setting up the LPA will mean that they have their own powers of decision taken away from them, and some may refuse to do it. These options could be handy alternatives if a parent is reluctant to set up an LPA, but you may find that they are limited in their value.
Write down their wishes
There are two types of Lasting Power of Attorney: financial and property, and health and welfare. As a stop-gap while you wait for official LPA, you could encourage your parent to at least write down what they want to happen in the future regarding their health and finances. This should be kept in a safe place, but bear in mind that it is not legally binding.
Third-party mandate
A third-party mandate allows someone else to make bank transactions on behalf of your parent. They will need to contact their bank, building society other organisation to find out how to do this.
General power of attorney
Not a well-known option, a general or ordinary power of attorney allows your parent to authorise someone to act on their behalf regarding financial and other affairs. It’s only applicable while your parent has the mental capacity to tell you what they want you to do. The OPG advises that they contact Citizens Advice or a solicitor to find out more.
Advance care planning
Your parent can record their wishes for future health treatment and care. This ‘advance care planning’ can include:
- advance decision: a decision made now to refuse a specific type of treatment at some time in the future. If it meets certain requirements, an advance decision is legally binding
- advance statement: a statement written by your parent about their preferences, wishes, beliefs and values regarding future care. It is not legally binding, but anyone making decisions about their care is required to take it into account
Losing mental capacity
Note that these are only applicable for an individual who has mental capacity. Should they lose mental capacity to make their own decisions, and an LPA is not in place, you will have to apply to the Court of Protection for deputyship, which can take a long time. Simply being next of kin is probably not going to give you the authority you need to make decisions on their behalf.
In the meantime the law requires that the people looking after your parent make decisions that are in their best interests. Their preferences, wishes and values should be taken into account where they are known, and the views of anyone else interested in their welfare should also be considered.
It’s worth mentioning that some people have an Enduring Power of Attorney in place. These preceded the Lasting Power of Attorney and can no longer be taken out but those already set up are still valid and can be used once registered with the Office of the Public Guardian. There are some limitations in that an EPA only authorises the Attorney to make decisions relating to financial matters and not those relating to health and welfare.
Many thanks for that clarification Alison. Really helpful. Kathy, editor at When They Get Older