Making decisions: Short-term alternatives to Lasting Powers of Attorney

When someone starts to find it difficult to make or execute decisions themselves, the natural thing to do is to reach for the Lasting Power of Attorney (LPA). Sadly, many people put off making LPAs – perhaps daunted by the prospect of ‘giving up control’ or because they refuse to contemplate that it may happen to them.

Many requests are, therefore, seen to be urgent. Some are too late – the donor has got to the stage where their level of understanding is not good enough to make an LPA and so the family has to apply to the Court of Protection for the appointment of a Deputy. Others find the combination of lengthy legal documents and social distancing a barrier. Even if you manage to negotiate the issues of capacity and the practical issues of actually signing the documentation, you may still find the timescales a problem.

Quite rightly, LPAs cannot be made overnight – the legislation itself inserts various safeguards and the documents have to be signed by all involved and registered at the Office of the Public Guardian. LPAs often take at least 8 weeks to register and there can be a backlog at the OPG (even when we are not subject to coronavirus restrictions). This means that it can take months to get to the stage where an LPA can actually be used – and then one has to convince the various banks and other organisations to recognise it and accept the authority of the attorneys.

Thankfully there are other ways people can make certain decisions for you or do certain things on your behalf that are quicker to get in place. These should never be seen as an alternative to an LPA however they might be useful while you’re waiting for the registration to be completed…..

Property and finances

The temptation is to give someone your bank card, pin or log in details – but that allows them to do what they wish and, given that you have given them those details, your ability to ‘claw’ anything back will be limited. Don’t’ do it.

Some banks and stores are offering a number of services during the coronavirus restrictions. Speak to your bank (most have dedicated helplines) and see what support they can offer you such as:

• Volunteer cards: Essentially you load money on to the cards and give them to someone so that they can e.g. do your shopping for you. Once the money on the card has run out you can top it up. This limits any potential financial abuse to the amount put on to the card.
• cash delivery: This service allows cash can be delivered to your house.
• Third party mandates allow you to authorise someone else to carry out bank transactions for you.

A general power of attorney allows you to authorise someone to manage your finances or to do certain things on your behalf. These documents don’t have to be registered but cannot be used once you start to lose mental capacity. You may also find that some institutions do not easily accept them.

Health and Welfare

There are a few ways you can let people know your wishes….

• Make a ‘Living Will’ – this allows you to refuse a specific type of treatment at some time in the future. As long as it meets certain requirements, it is legally binding.
• Make an ‘Advance Statement’ – this sets out your wishes etc. regarding your future care. It is intended to guide those making decisions in your best interests but is not binding.
• Make an advance care plan – this can be made with your healthcare team. It’s not legally binding but it records your treatment and care wishes to that those involved in your care know what’s important to you.

You need to be careful that these alternative options do not inadvertently cancel or contradict your LPA – if you intend to make them, please discuss it with your solicitor.