A Journey Worth Taking: The Power of Planning
The Unlikely Pilgrimage of Harold Fry by Rachel Joyce follows the titular character as he pledges to walk from Kingsbridge to Berwick-upon-Tweed to save his former work colleague, Queenie Hennessy, who has been diagnosed with cancer.
As Harold traverses the English countryside, the reader joins him on a journey spanning 87 days and 627 miles. During this time, Harold experiences joy and pain, inspiration and illness, companionship and loneliness.
Loss or decline of mental capacity appear as key themes throughout the book. Harold recalls the impact of Alzheimer’s on his father, who moves into a care home at the end of his life. A glimpse into the memories of Maureen, Harold’s largely housebound wife, reveals their son David as having struggled with depression, anxiety and insomnia. Queenie herself almost certainly loses capacity due to her illness. But what are the legal implications here, and how can we best protect the interests of ourselves and our loved ones?
Lasting Powers of Attorney
Lasting Powers of Attorney (LPAs) are powerful legal documents through which you (the ‘donor’) can appoint individuals (your ‘attorneys’) to manage your affairs and make decisions on your behalf. There are two types of LPA: one for Property & Financial Affairs, and one for Health & Welfare.
Unlike a Will, LPAs operate during your lifetime. It is possible to set up a Property & Financial Affairs LPA so that it can be used as soon as it is registered, even if you have capacity to manage your affairs. This approach is useful in many scenarios including a period of travel akin to Harold’s journey across England. During such a time, your attorneys (with your authority) could make decisions for you in relation to your property and financial affairs whilst you focus your energy on enjoying life’s adventures. It is a common misconception that LPAs are for the elderly when, in fact, they are useful for everyone as it is impossible to predict an accident or illness that may affect capacity. It is never too early to protect your interests.
Capacity is a fluctuating concept, and loss of capacity can be temporary or permanent. Having an LPA in place helps provide peace of mind in an uncertain world. Once registered, LPAs need not be changed, unless you would like to change your attorneys.
Attorneys making decisions under an LPA have a duty to act in the best interests of the donor. An attorney can be a friend, relative or professional (such as a GP or solicitor). You might decide to appoint different attorneys for each LPA. The most important point is to choose attorneys that you trust.
LPAs must be registered with the Office of the Public Guardian before they can be used.
Health and Welfare
Many people are surprised to learn that their next of kin do not have legal authority to make health or medical decisions on their behalf.
A Health and Welfare LPA gives your attorneys the power to make decisions on your behalf in relation to important issues such as your daily routine (including washing, dressing, and eating), medical care, and moving into a care home. Further, you can choose whether your attorneys can give or refuse consent to life sustaining treatment on your behalf. A Health and Welfare LPA can only be used once you have lost capacity, but it must be registered in advance.
Whilst medical professionals must make decisions in accordance with a patient’s best interests, these decisions may not align with what you want. Your attorneys can advocate for your wishes, feelings and beliefs to be taken into account.
When Harold is finally reunited with Queenie, he is informed that she is “confused, and in some pain”. By the time they meet, Queenie has also lost the ability to speak.
Having a written record of your wishes and feelings in the form of ‘preferences’ and ‘instructions’ can offer a source of comfort if the worst were to happen.
Preferences are not legally binding. Your attorneys don’t have to follow them, but they should keep them in mind. A preference might include guidance as to what you would like to happen in the event that you are on a life support machine.
On the other hand, attorneys must follow instructions recorded in your LPA. Instructions may include an express requirement to support and consult and take into account your views, as the donor.
It is important to take advice on the wording of instructions, as including any instructions that are not legally correct will prevent your LPA from being registered.
Advance Decisions
Advance decisions specifically relate to refusal of treatment. If you have an advance decision in place, it is possible for this to sit alongside your LPA. Where an advance decision and your LPA both cover the same decision, the later document to be created will take effect.
For example: a donor may refuse a blood transfusion by advance decision and make a Health and Welfare LPA subject to that advance decision, meaning their attorneys could give or refuse consent to life-sustaining treatment with the exception of blood transfusions.
Property and Financial Affairs
A Property & Financial Affairs LPA gives your attorneys the power to make decisions relating to your money and property. This can include managing your bank accounts, paying bills, and selling your home.
In contrast to the Health and Welfare LPA, your attorneys can make decisions as soon as the LPA is registered, with your permission.
Allowing your attorneys to use the LPA before you lack mental capacity can be very useful. It can help ease administrative burden by allowing your attorneys to tend to your affairs if, for example, you are on holiday or have a physical condition that makes it difficult to visit institutions such as banks. It is also useful if you are visually impaired yet have full mental capacity.
During the first weeks of Harold’s pilgrimage, Maureen watches as household bills, addressed to her husband, begin to collect into a pile on the hall table. Whilst she is eventually able to deal with them by getting out the cheque book, it is not always so easy.
It might also come as a surprise to learn that owning assets in joint names, such as a bank account, does not negate the need for an LPA. If one of the co-owners loses capacity, banks can put a stop on the account that prevents the remaining co-owner from accessing funds within the account.
As above, your Property & Financial Affairs LPA can include bespoke preferences and instructions to guide your attorneys. A legal professional can work with you to draft bespoke clauses including, but not limited to: charitable gifting, maintenance of dependants, and management of your estate in a manner that may reduce inheritance tax due on your death.
Business LPAs
If you have business interests, it may be prudent to have a dedicated ‘business LPA’. This is a form of Property and Financial Affairs LPA that relates to business decisions only and can sit alongside an LPA relating to your personal finances and property.
Whilst you may appoint friends or family members to manage your personal finances, it might be appropriate to appoint separate qualified individuals to take on the running of a business or businesses. Appropriate arrangements should be made to ensure the attorneys appointed can make decisions in the best interests of you and the business.
Specialist advice should be taken to ensure the provisions of the LPA do not conflict with any existing business agreements, such as a partnership agreement or articles of association.
If you have more than one business interest, it may be appropriate to create more than one business LPA, each with bespoke provisions tailored to the needs of the particular business.
Enduring Powers of Attorney
LPAs were introduced under the Mental Capacity Act 2005 and came into force in October 2007. Prior to the introduction of LPAs, we had Enduring Powers of Attorney (EPAs). Whilst it is no longer possible to create new EPAs, those validly created before October 2007 can still be used.
It is important to note that any authority given by an EPA is limited to acts relating to the donor’s property and financial affairs only. Therefore, it offers none of the protections discussed above of an LPA for Health and Welfare. Further, it was very rare for EPAs to contain any preferences or instructions.
If you have an EPA in place, it may be beneficial to replace this with a new LPA for Property and Financial Affairs to include provision to help your attorneys in the event that they act for you. It is also recommended that you supplement this with an LPA for Health and Welfare.
Court of Protection – Deputyship
We always recommend getting an LPA in place as soon as possible. However, if you or a loved one has lost capacity before getting the chance to create an LPA, an application to the Court of Protection to appoint a deputy may be needed.
This process is expensive and time consuming, and the person who lacks capacity has no control over who the Court decides to appoint as deputy. However, it is a ‘back stop’ option that’s available if needed.
“It struck Harold afresh how life could change in an instant.”
Harold may have set out on his journey without a plan, but at Irwin Mitchell, we can assist you in preparing for the unexpected. If you would like to discuss Lasting Powers of Attorney further, or need assistance with a deputyship application, our local solicitors are here to help.
“It struck Harold afresh how life could change in an instant.””
