What is an Lasting Power of Attorney (LPA)?
An LPA covers decisions about your financial affairs, or your health and care. It comes in effect if you lose mental capacity, or if you no longer want to make decisions for yourself.
You would set up an LPA if you want to make sure you’re covered in the future.
There are two types of LPA:
LPA for financial decisions
LPA for health and care decisions.
An LPA for financial decisions can be used while you still have mental capacity or you can state that you only want it to come into force if you lose capacity.
An LPA for financial decisions can cover things such as:
Buying and selling property
Paying the mortgage
Arranging repairs to a property
An LPA for health and care decisions and can only be used once you have lost mental capacity. An attorney can generally make decisions about things such as:
Where you should live
Your medical care
What you should eat
Who you should have contact with
What kind of social activities you should take part in
Unfortunately, many people diagnosed with dementia will eventually reach a point when they can no longer make decisions for themselves. When a person lacks ‘mental capacity’, it’s common for someone else, for instance a family member, to make decisions on their behalf.
Who can make an LPA?
Anyone who is over the age of 18 and has the mental capacity to do so can make an LPA. Once a person has lost mental capacity, they will not be able to appoint an LPA.
Why would someone need an LPA?
For a person with a diagnosis of dementia, there may come a time when they are unable to make decisions about their care and their finances. A lasting power of attorney is a legal document appointing one, or more, trusted people to be their attorney(s). An attorney is a person responsible for making decisions on the person’s behalf.
People in a civil partnership or marriage might assume their partner can deal with their finances and make decisions about their healthcare should they lose the ability to do so, but this is not necessarily the case. If someone has not drawn up an LPA when they are assessed to have lost capacity, and their partner or friend wants to make decisions on their behalf, they may have to apply to the Court of Protection to be appointed as the person’s Deputy. This can be a long, complex and expensive process.
Making the right choice
If you’re considering making a LPA, here are five reasons why it might be a good move for you and your family and friends.
You can choose people you trust to manage your affairs and to make decisions on your behalf, should you become unable to do so. You can choose who acts for you and how they make decisions.
A Lasting Power of Attorney is a legal document which authorises your specified people to make decisions on your behalf. If you provide your bank cards to trusted friends or relatives, any permission you have given to them will be automatically revoked if you lose capacity in which case, they are technically committing fraud.
It is important to note that you do not lose any control by making an LPA. Indeed, a properly drafted LPA can contain details of your wishes and instructions for your Attorneys to follow, allowing you to retain control even after incapacity.
If you’re unable to make a decision for yourself in the future, the person you choose will be able to make decisions for you, rather than a stranger or someone you do not trust.
Making an LPA helps start conversations with your family about what you want to happen in the future.
Other ways an LPA is beneficial
An LPA isn’t just put in place due to mental illnesses, it’s also very important to have as a security for anything sudden that can happen. “It will never happen to me”, is what a lot of us think. But sadly, accidents do happen all of a sudden and out of the blue. And in a heartbeat, lives can be turned upside down.
In the UK, every 90 seconds someone is admitted into hospital with a brain injury, whether it be from an accident or contact sport being examples of what can go wrong.
If such a life situation was to happen and an LPA wasn’t a document you have, then family or friends wouldn’t be able to assist or take control of finances or welfare decisions. You would have to apply to the Court of Protection to grant you permission which is a costly and lengthy process.
To apply to become a deputy there’s a fee of £365 that you are required to send with your application. If the court decides that your case needs a hearing then there’s an additional charge of £485. These payments are only the start of charges that will be occurred should you need to apply to the Court of Protection.
Having an LPA not only eliminates occurring the charges and the stress, it also comes into place instantly. Once the LPA is submitted, it takes up to ten weeks to register. The power will be effective as soon as the LPA is registered, so the attorney will be able to start making decisions straight away, unless they specify otherwise on the application. When applying to the Court of Protection, the court aim to issue an order within 21 weeks of the application being stamped. It can take 5-6 weeks to get to this point, depending upon how long the initial steps take. Please note, an LPA must be put in place BEFORE the person loses their mental capacity.
You probably wouldn’t want to die without a will in place, especially if you own property, have substantial cash savings, or have a partner or dependants. But what if something happens to you that does not kill you, but leaves you incapable of communicating your wishes to those closest to you.
It’s an uncomfortable thought but it’s crucial to consider it in good health and make the sensible decision. An LPA is probably the single best way to make sure that your interests are protected from the moment you are incapacitated until your death, after which your will can distribute your estate in the usual way.
by Bhupinder Mann, Associate at Balfort LegalSep 23, 2019
Why Establishing Testamentary Capacity Is Not a Tick-Box Exercise
One of the many challenges for legal practitioners specialising in Will drafting is establishing the testamentary capacity of the Testator. While in some cases, the presence or absence of sufficient mental capacity may be clear, in others, there may be some uncertainty, necessitating a more comprehensive process to reach a consensus. In the case of James v James  EWHC 43 (Ch);  C.O.P.L.R. 147;  1 WLUK 252 (Ch D (Bristol)) the High Court was asked to make a ruling on a challenge to a Will based on lack of testamentary capacity, and also outline the factors law practitioners should consider when making a capacity assessment at the time of Will drafting.
James v James (2018)
James v James involved the Will of a man who died in August 2012 at the age of 81. The Testator had been a successful businessman with a farming and haulage operation in Dorset. He had been reluctant to make commitments to his family regarding his inheritance until later in his life after his cognitive wellbeing had been in decline for some time.
The Claimant, S, was one of the Testators three children. In 2007, some of the plots of land owned by the Testator were transferred to one of his daughters, and after the family farming partnership was dissolved, the claimant received a farm, £200,000, the haulage business, vehicles, and a license to use one of the plots, ‘Pennymore’ from which to operate the haulage business. S, however, had been led to believe he would inherit ‘Pennymore’, leading him to challenge the Will on the grounds of his father’s lack of testamentary capacity.
It was stated that the Testator had not been “as formidable as he had once been” from approximately 2004 and had been diagnosed with “moderate dementia with frontal lobe impairment” in 2011. The Will had been signed in September 2010, hence close to the time at which the Claimant had been assessed as unable to make decisions “about his health care, where he lives or his finances”. The High Court held that the common law test for assessing retrospective capacity should be the one set out in Banks v Goodfellow (1870) (Banks), rather than the statutory test set out in the Mental Capacity Act 2005. Applying Banks, the Testator, should have understood:
the nature of entering into the will and its effect;
the extent of the property of which he was disposing; and
claims to which he ought to give effect
In addition, Banks requires the Testator have “no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.
The Court held the Testator did have the capacity to enter into the Will.
This case is significant as it underpins the continued importance of Banks as the sole test for judging Will-making capacity in retrospect, and despite being a case from 1870, has not been superseded by the more recent Mental Capacity Act 2005, which contains a new legal provision for the assessment of mental capacity.
Assessing testamentary capacity at the time of Will writing
The importance of verifying the mental capacity of a Testator should never be underestimated. Ultimately, by undertaking this process in a clear and concise manner, contentious probate can be avoided, saving cost, time, and familial discord on behalf of clients and their beneficiaries in the future.
As we established above, the Banks test requires the Testator to understand the Will itself, the extent of their assets and the claims upon them. In addition, a law practitioner can further assess testamentary capacity in several ways:
If the Testator is elderly or infirm at the time of Will writing, the following steps should be considered:
Obtain contemporaneous medical opinion confirming testamentary capacity
Asking a medical practitioner to witness the Will
In the absence of medical opinion, explain to the Testator that this may heighten the possibility of their Will being challenged successfully on the grounds of lack of testamentary capacity. Ensure they confirm they wish to proceed and make clear notes of the guidance provided and the decisions made by the Testator and attach these records to the file.
If a medical opinion is needed, it is important to request the assistance of a health practitioner with the skills to assess capacity, to avoid the risk of their competence to make this assessment being questioned in a later claim. The client’s GP may therefore not be the best person to make the assessment. It is also essential that the time between the medical opinion being received and the Will being signed be minimised, to avoid any suggestion that mental capacity declined in the intervening period. When instructing the medical expert, subject to your client’s consent, it is also recommended to provide a summary of their proposed testamentary wishes.
If there is uncertainty regarding the mental capacity of your client (i.e. you have doubts but cannot be sure), it may not be in the best interests of the client to draft the Will. Should your client still wish to proceed in light of the risks that the Will may be later deemed invalid, you should record all of the grounds for doubting capacity, that this has been explained to your client, and the reasons they still wish to proceed.
Given the rise in Will disputes, it is even more essential that law practitioners specialising in Will drafting make no assumptions regarding the cognitive capacity of clients. Proving testamentary capacity is more than a tick-box exercise; rather it is one that requires that Solicitors and Will writers take the time to get to know their clients and to notice the subtle signs that their capacity may be diminished. By being open and transparent about the importance of this aspect of ensuring Will validity, you can ask questions and seek further information to help you make a determination. And don’t assume only those in their later years may lack testamentary capacity. A client who has suffered a head injury, perhaps as a result of a road traffic accident, or fall, may appear young, physically well, and alert, but maybe suffering impaired cognition (e.g. memory or logical reasoning). By broadening our view of what impaired mental capacity looks like, we can ensure the validity of the Wills we draft is not questioned at a later date.
by TWP Main AdminSep 12, 2019Read More
A recent ruling by the High Court determined that a claim brought by 3 sons for a share of their mother’s £1 million family home was unsuccessful.
Mrs Rea died in July 2016 at the age of 86 and in her final Will which she made in 2015, she left her South London home, which was her main asset and worth roughly £1 million, to her daughter Rita. It was found she had left a note with her Will which stated
‘My sons do not help with my care and there have been numerous calls for help from me but they are not engaging with any help or assistance. ‘My sons have not taken care of me and my daughter Rita has been my sole carer for many years. ‘Hence should any of my sons challenge my estate I wish my executors to defend any such claim, as they are not dependent on me and I do not wish for them to share in my estate save what I have stated in this will.’
It was found that her 2015 Will replaced an earlier Will in 1986 which had left her entire estate to be shared equally between her 4 children.
The sons who were written out of the mother’s Will, brought a claim on the basis that their sister had “poisoned” their mums mind by claiming the sons had abandoned their mother so that she would solely inherit the family home.
It was relevant that the 3 sons had only been left a very small legacy, which, after funeral expenses would leave them with nothing. On that basis, they had made an application to strike out the 2015 Will and reinstate the earlier Will made by their mother in 1986.
The Court held that there needed to be evidence to show that Rita had “poisoned her mother’s mind by casting a dishonest aspersion on their characters.” On hearing and considering the evidence before them, the Court found there was no evidence to show that Rita had “poisoned her mother’s mind,” rather the sons relied on inference and therefore their claim was unsuccessful. It was noted that Rita had provided extensive daily care to her mother whilst the contribution from her sons was very little. In September 2015 Nino and David (Mrs Rea’s sons) had set up a rota to help with their mother’s care but within a few weeks, it had collapsed.
It was found that Mrs Rea had always had a close relationship with her daughter and a “soft spot” for her. It was her daughter who had moved into the family home to solely care for her during the final years of her life after Mrs Rea had suffered a heart attack in 2009.
On hearing the evidence from Rita, it was found the brothers each had a key to the family home and were welcome to visit as and when they wished to. It was only until late 2015 or 2016 when her relationship with her brothers became strained that the locks were changed.
With regards to the brothers contesting the Will on the grounds of undue influences, it was held Mrs Rea was very strong minded and at the time she made her revised Will, it was clear she knew what she was doing. Whilst English was not her first language, she understood enough to know the implications the change in her Will would have. Therefore, her mind had not been influenced and she made the decision to write her sons out of her Will on her own accord.
This case highlights just how important it is as professional will writers to exercise caution where cases are likely to be contentious and ensuring that detailed attendance notes are kept with your file.Read More