Changing Fears to Facts
As a campaigner for Advance Care Planning and normalising discussion about this important part of life I was overjoyed this week to receive a call from one of my clients. The call was to share an article she had read about Lasting Power of Attorney and what I will call very founded fears. I promised our conversation would be the starting point for my next blog.
The client in question lives in Shropshire; we have had many calls to make sure their LPA was just right and to support with the all-important signing stage, even one I remember on Christmas Eve. My client, I will call Mrs Morris, called this time to alert me to an article she had read in the Saturday Times by @imogent_ The writing referenced a recent Which? poll finding there was a mistaken belief that LPAs could be set up as needed finding “77% (of people) thought it could be set up whenever”. The article continued to present another finding of the poll with 70% of those polled saying “they were healthy so did not need one.”
What is a Lasting Power of Attorney?
A Lasting Power of Attorney is a legal document that enables you to appoint someone you trust to speak for you if you ever lose the capacity to speak for yourself either through a sudden accident or a long-term health condition.
“This gives you more control over what happens to you if you have an accident or an illness and cannot make your own decisions (you ‘lack mental capacity’). ”
Why Lasting Power of Attorney can’t be set up “whenever needed”
There are two reasons why you cannot set up a Lasting Power of Attorney whenever needed. Firstly, a practical reason: it takes time. To formalise a Lasting Power of Attorney, it must be registered with the Office of the Public Guardian . Until COVID-19 this took around eight weeks, but more recently the process takes closer to twenty weeks.
“It takes up to 20 weeks to register an LPA if there are no mistakes in the application.”
As you need to have capacity to complete a Lasting Power of Attorney, it would be too late to complete when needed, or in other words when you had lost capacity.
I monitor every Lasting Power of Attorney I draft and I am finding the registration time to be an average of seventeen weeks. If there are any problems with the way the Lasting Power of Attorney this time can be considerably longer and cost more. Lasting Power of Attorney documents can be drafted independently but the possibility of making a mistake is a common reason for people to seek support when making a Lasting Power of Attorney.
In the case of sudden accident there is simply no warning or time to begin a Lasting Power of Attorney.
The second reason is more emotional than practical and applicable in a scenario where a person has a degenerative disease such as dementia. Too often the decision to make a Lasting Power of Attorney is left too late, to the point where the person has lost capacity therefore is unable to make a Lasting Power of Attorney. I had a call last week where this was the case and I found it heart-breaking, a wife was unable to access funds to pay for her husband’s care and approached me for support drafting a Lasting Power of Attorney. It was clear that I could not do this as her husband had lost capacity already and in this case I advised the only option was to apply for deputyship through the Court of Protection The process for gaining deputyship is long, costly and complex and can be avoided by having a Lasting Power of Attorney in place.
Choosing the “right time” to have an Important Conversation when someone has a degenerative disease is hard and has an additional emotional burden. I write about this in more detail in the blog When Later is Too Late .
I’m healthy, I don’t need a Lasting Power of Attorney…do I?
If we have learned nothing else in the past two years we have learned that life is unpredictable. Facing the spectre of COVID-19 none of us knew if or how we would be affected; suddenly and sadly mortality became a very real topic. We can progress from a state of good health to ill health with little warning and no time to appoint someone we trust to talk for us if capacity is lost.
In just a normal part of life planning I present Lasting Power of Attorney as simply part of normal planning ahead, not something that can be left to a crisis. It would appear form the Which? results described earlier that the majority of of people are not recognising that a Lasting Power of Attorney is something that you do when you are well for a time you may be ill.
Changing Fears to Facts
Widespread misunderstanding about when you can set up a Lasting Power of Attorney is cause for concern. Most of us know who we would want to make important decisions for us if ever needed, yet haven’t put mechanisms in place like a Lasting Power of Attorney to formalise this.
Receiving the phone call from Mrs Morris represents a family talking openly planning ahead and sharing the important message. It was a joy to receive, and this blog is dedicated to you Mrs Morris.
If you haven’t made an LPA yet and require information or would like me to draft your Lasting Power of Attorney contact me.
My thanks to @imogent_ for raising awareness about Lasting Power of Attorney in the Saturday Times 19.2.2011