Secure your future: the crucial role of a solicitor in preparing a Lasting Power of Attorney

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Consulting a solicitor for legal and estate matters is both a smart and essential step for future planning. A Lasting Power of Attorney or LPA is a legal tool that allows someone to handle your affairs if you’re unable to do so, such as financial management and healthcare decisions – and in today’s unpredictable world, it is crucial.

Emma Howlett, Head of Wills and Probate at Thomas Mansfield Solicitors, said: “Planning for the unfortunate loss of mental capacity is an uncomfortable thought but it can save you and your family thousands.”

If the worst should happen, your relatives would not be able to walk into a bank and access your money without an LPA, even if it’s to pay for your care. Instead, your loved ones would need to apply through court to become ‘deputy’, which can be a long and expensive process.

When thinking about setting up an LPA, careful preparation is vital. You can only set up a Lasting Power of Attorney when you have mental capacity – once you’ve lost capacity, it’s too late. Emma also warns that errors when completing LPA forms can have serious consequences.

30,000 applications were rejected by the Office of the Public Guardian last year due to mistakes like missing signatures, incomplete information, and improper witnessing. What’s more, it costs £82 to register an LPA, and if you make a mistake the application will be rejected and won’t be legally valid.

Emma Howlett, Head of Wills & Probate at Thomas Mansfield Solicitors, has identified some of the common mistakes when filling in LPA forms and their implications.

Common issues and how to resolve them

  1. Failing to include restrictions or guidance. A LPA allows you to include specific instructions, restrictions, or preferences, giving you control over how decisions are made. Neglecting to include these could mean that your attorney may make decisions you wouldn’t agree with or may prevent your attorney from carrying out your wishes.
  2. Contradictory requests. You might appoint attorneys to make decisions one way, but then include instructions that contradict this. For example, if you have three attorneys appointed in your LPA, and the LPA says attorneys should act ‘jointly and severally’, you can’t then include an instruction in the LPA to say that decisions are made by majority vote, as by acting jointly and severally, all the Attorneys have equal power to act and make decisions.
  3. Choosing the wrong attorney. The person you appoint as your attorney should be someone you trust completely, as they will have significant control over your life if you become incapacitated. Failing to properly consider who you appoint can lead to issues down the line. For example, during the cost of living crises instances of LPA abuse, where attorneys misuse their power or act against their appointee’s interests, sadly increase.
  4. Not understanding the different types of LPAs. There are two types of Lasting Power of Attorney. The Property and Financial Affairs LPA allows management of your finances and property and can be used immediately after registration. The Health and Welfare LPA covers healthcare and personal welfare decisions and only comes into effect if you lack mental capacity. Choosing the wrong type or not understanding the distinctions can lead to issues in the future.

Protecting your future with a professionally tailored LPA

While the thought of losing mental capacity is daunting, the peace of mind and security a properly executed Lasting Power of Attorney offers cannot be overstated. By setting up an LPA with professional guidance, you can ensure that your personal and financial matters will be managed according to your wishes, even if you are no longer able to make decisions yourself.

At Thomas Mansfield, the team ensures that every aspect of your LPA is prepared with precision and care, reflecting your specific needs and wishes.

Not only will this safeguard your interests, but it will also provide your loved ones with a clear and legal framework to support you, should the need arise. Remember, it’s not just about planning for the future; it’s about securing peace of mind for both you and your family today.

For tailored advice on creating your LPA contact Thomas Mansfield’s Wills & Probate team on 0808 256 2917 or email [email protected].

Making financial decisions on behalf of a child

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Most children’s lives are significantly influenced by their parents who are empowered by the legal concept of ‘parental responsibility’. Parents make all sorts of decisions for their children until such age as they’re able to do it for themselves. But in some families, that time never comes, because the young person doesn’t acquire the necessary mental capacity.

Mental capacity is someone’s ability to make decisions about their life. This may not develop in a person, or it may become lost through illness or an accident. And the older a young person gets, the more complex it can be to make decisions for them. Parental responsibility ends at adulthood. So, what happens when a child who lacks mental capacity turns 18? Who makes decisions about their finances? And how should those decisions be reached?

The government has published a toolkit to help parents and carers navigate the ongoing challenges of decision-making on behalf of young people – those between the ages of 14 and 25 – who lack mental capacity. I’ve summarised some of the key parts below:

When your child reaches 16

Parents continue to have parental responsibility and so you can make decisions for and about your child. However, in doing that, you must apply the five principles of the Mental Capacity Act:

  1. Don’t make a decision for that young person unless you can show that they can’t.
  2. Support the young person in making their own decision before making it for them (but don’t try to persuade them what to do).
  3. If the young person makes a decision you think is unwise, don’t automatically take over; it doesn’t mean they’re unable to make a decision. But do question their capacity if they: (a) make repeated unwise decisions that put them at risk or harm; or (b) make a particularly unwise, out-of-character decision.
  4. Anything you do, or any decision you make, for or on behalf of the young person must be in their best interests (we discuss ‘best interests’ here).
  5. Before acting, or making a decision, for a young person, ask whether the same outcome could be achieved with fewer effects on their rights and freedoms.

When your child turns 18

A young person has responsibility for making their own decisions when they become an adult. But there are two ways in which you could make a decision on their behalf:

  • By getting their consent (and then applying the five Mental Capacity Act principles above); or, if the young person doesn’t have capacity to consent:
  • By applying to the court for authority to make the decision.

The Court of Protection is a specialist court that safeguards the interests of people who lack mental capacity. It’s a vital part of the system, helping protect some of the most vulnerable people in society. Where the court is asked to look at the situation of a young adult who doesn’t have capacity to make decisions about their finances, it could either make a one-off order (for example, to access money earmarked for a specific need) or, in urgent cases, an Emergency Interim Order. Or the court could appoint a ‘deputy’ to make ongoing decisions on the young person’s behalf. A deputy is often a member of the young person’s family, or a friend or carer.

The guidance makes clear that it’s good to think ahead. If the young person is under 18, but you think they will lack capacity when they reach 18, you could make the application to the Court of Protection in readiness for them reaching adulthood. That way, legal authority for decision-making will be in place when the time comes.

As private client solicitors, we often help clients through the Court of Protection process. We also help families plan ahead by putting lasting powers of attorney (LPAs) in place. These are important documents, but they can only be made when the young person has mental capacity. They appoint a trusted person – an ‘attorney’ – to make decisions about the person’s property and affairs, with specific instructions in place, if that’s what the young person wants.

Similar to a deputy, an attorney is usually a family member, friend or carer. Their decision-making remit could include:

  • Managing the young person’s bank account and investments
  • Paying bills
  • Selling the person’s home.

The LPA could also give the attorney legal authority to access the young person’s child trust fund, which matures when they turn 18.

An attorney must follow the Mental Capacity Act principles. This might mean, for example, that the young person continues to manage their day-to-day expenditure while the attorney takes care of the more complex finances. And any decision made has to be in the young person’s best interests.

Mental incapacity can be extremely difficult to deal with on both an emotional and a practical level. Whether a mental impairment existed from birth, or it took hold later in life, it generally falls to family members to take charge and be up to speed on the protective legal process. The government’s toolkit is a great start, explaining some of the main aspects, but it is important you take professional advice for your specific circumstances.

For for specific help in making financial decisions for a young person, contact Emma Howlett or a member of the Private Client team on 0808 256 2917.

The New Year’s resolution you can stick to…

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Exercise more? Cut out alcohol? Make a Will?

Good intentions come in all shapes and sizes. And a new year presents that perfect opportunity to make changes, to improve, to get things done. It feels like a time to start afresh, with a positive attitude and a determination to shake off the old.

That’s the theory, anyway. (How many of us have made resolutions, only to fall at the first hurdle?) But the experts say it’s all about setting achievable goals. It’s about pinpointing what needs to be done, what can be achieved and committing to doing it.

As a legal expert who helps people get their personal affairs in order, clients sometimes come to me in January with one question: I need to get myself organised, but I have no idea where to start. My response? Let’s talk about your situation.

Personal circumstances dictate what measures should be put in place, how and when. Some clients will have particular concerns – how to ensure the right people will benefit from their estate, how to minimise tax, how to earmark money for care home fees, for example – and we’ll talk through the best ways of achieving those aims. There may be things clients haven’t considered – a discretionary trust or a living Will, for instance. And there will be clients who know what they need and simply want us to get the paperwork in place. The key thing in each of those scenarios is understanding the full picture, so that the future planning fits together cohesively.

This all has to start somewhere. And my message for now is: use January to get the basics done. A Will and a Lasting Power of Attorney are two documents that can be put in place relatively quickly and they offer peace of mind that aspects of your future, and that of your family, are taken care of.

Why a Will?

Everyone should have one. It is the legal assurance that your estate will be dealt with in the way you want after you have passed away. It can be used to express certain wishes and it means your family will avoid being subject to the rules of intestacy which add complexity to the estate management process and could mean significant people in your life don’t inherit. It’s even more important to have a Will if you and your partner are not married or in a civil partnership, as the law offers less protection to cohabitees – you may not inherit your family home in the event your partner dies, for example.

Making a Will gives peace of mind, but it’s not something you should forget about once it’s been written and filed away. It’s really important to check in on your Will every three to five years and always when aspects of your life change – a new baby, you receive some inheritance, your executor passes away, you marry. If you need to make a change, your solicitor will be able to advise you on whether to prepare an entirely new Will, or whether the change can simply be made via a ‘codicil’ – a formal alteration.

Why a Lasting Power of Attorney?

These are usually very straightforward to put in place, and there can be huge advantages to having one. A Lasting Power of Attorney appoints people to make certain decisions about your property and finances or your health and welfare if you become unable to make those decisions for yourself. It’s a bit like an insurance policy; you might not need to call on it, but it’s there if you do. None of us knows if an accident or an illness might rob us of our mental capacity, leaving us unable to take proper care of ourselves. A Lasting Power of Attorney means the right people are ready to step in if called upon.

As with Wills and other future planning documents, it’s important to update your Lasting Power of Attorney if relevant change happens in your life. You might need to appoint an additional attorney, or replace one who can no longer carry out the role. You may want to change an instruction or preference you’ve set out. Making sure the Lasting Power of Attorney keeps apace with developments means you’ll have a document that offers you the best protection.

Of course, there are many other aspects of future planning that can be put in place relatively quickly and which will reassure you and your family for the years ahead. The most important thing to do is: something. Taking steps now to get plans in place will place one, giant tick on your to-do list. And speaking with a Wills and inheritance specialist is a great place to start. They’ll help you map out a plan and get those vital legal and financial provisions in place.

For advice about making a Will or a Lasting Power of Attorney, or any other aspect of future planning, contact Emma Howlett or a member of the Private Client team on 0808 256 2917.

How the law could help families keep more memories alive

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If I asked you to list everything you own, would you think about the camera roll on your smartphone?

People tend not to see digital assets, like photos, music playlists, social media accounts, as ‘assets’ in the usual sense. Aside from cryptocurrency, these things may not hold a recognisable financial value or represent something similarly tangible to a home, an engagement ring or money in the bank. But digital assets exist, and they outlive their creator or owner. And for loved ones left behind, digital assets maintain an important connection to the person they have lost.

As the number and types of digital assets have grown, so too have issues encountered by people who want to access them following a person’s death. For good reason, password and data protection is robust. And while it would seem sensible to allow a daughter to access the photos on her deceased mother’s phone, or a widower to get into his wife’s Facebook account, this has historically been less than straightforward. It is a situation that has increased the pain and suffering felt after a loved one’s passing. And it has led to a Private Members’ Bill that is making its way through parliament.

The Digital Devices (Access for Next of Kin) Bill would give a grieving relative the right to access their loved one’s digital data. It also places an onus on tech companies to facilitate this, by unlocking devices for which people don’t have access codes.

The Bill has some way to go before becoming law, but I very much hope that its journey leads to these significant changes being made. Clients who come to see me after the death of a loved one are often overwhelmed by the formalities that need to happen. Everything, from the clearing out of clothes from the wardrobe, to the gathering in and division of assets and liabilities, places a strain on already fragile people who are doing their best to get through the hardest of times. To then be faced by a brick wall when attempting to retrieve their loved one’s digital data has felt an unfair additional challenge.

So, the Digital Devices Bill is something I wholeheartedly support. It should remove a significant disadvantage currently suffered by families who simply want to keep memories alive and prevent digital assets from becoming lost. But there are also things that each of us can do now to make the future process of administering our estates as straightforward as possible for our loved ones.

I would urge anyone preparing for the years ahead to get specific advice on how best to deal with digital assets as part of the process of writing a Will or a Lasting Power of Attorney. (It’s important to understand, as a starting point, whether each of these assets is owned outright by you, or whether it is licensed to you, for example.) Working through this now will reap rewards, leaving fewer difficulties for loved ones to navigate in the years to come.

For advice about organising your affairs, or specifically about digital assets, contact Emma Howlett or a member of the Private Client team 0808 256 2917.

Why a Small Payments Scheme could have a big impact

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Anyone who has tried to deal with financial matters on behalf of someone else will know just how many barriers are in place. While there are very good reasons for this, it can be hugely frustrating for well-intentioned family members who simply want to access funds for their loved ones’ benefit.

The Mental Capacity Act 2005 was designed to give some regulation and definition to the issues around supporting people who may lack mental capacity, to make their own decisions, in their own best interests. The law around capacity is famously grey and uncertain, meaning that families/friends and professionals face a potential minefield when it comes to managing the financial affairs of someone who has lost capacity, either temporarily or permanently.

The overarching point is that the correct authority to act for someone who does not have capacity must be in place, if action is required. In some cases, that may be provided through an Ordinary Power of Attorney (OPA), but this can only be made while the person making the OPA (‘the Donor’) has capacity and is only valid while the Donor retains capacity. It is normally used to manage specific tasks that the Donor wants someone to deal with for them, such as the sale of a property or the paying of bills while travelling etc. OPAs are far less frequently used than Lasting Powers of Attorney.

A Lasting Power of Attorney is created while the donor has capacity and its primary difference to an OPA is that it ‘lasts’, which means that it can still be used if or when the donor loses capacity. People make Lasting Powers of Attorney to appoint their attorneys (often a family member or friend) with the intention that they will take over the responsibility for making various decisions over the Donor’s property and financial affairs. Attorneys can act under a Property & Financial LPA while the Donor has capacity and when the Donor has lost capacity.

There is a Health and Welfare LPA, which, unlike the Property and Financial LPA, can only be invoked and used when the Donor has lost capacity or is unable to speak for themselves in terms of their health and welfare needs.

Problems arise where neither an OPA nor an LPA has been prepared and there is no one ready and authorised to step in. Where someone has lost mental capacity, this can be a particularly difficult situation to work through and it often requires the involvement of the Court of Protection to resolve.

The Court may make a ‘one-off order’ relating to a particular decision that needs to be made, or appoint people (‘deputies’) to act in the best interests of the mentally incapacitated person. The role of a deputy is similar to that of an attorney appointed under an OPA or an LPA.

The trouble is that the Court route is often lengthy, costly and it may not be in the best interests of the loved one who needs taking care of.

In some situations, those caring for a person who has lost mental capacity simply need to access small amounts of money, fairly quickly, to meet that person’s needs. It is this issue that has become a focus for the Ministry of Justice, which is currently consulting on proposals to introduce a ‘Small Payments Scheme’.

What would a Small Payments Scheme mean for someone caring for a mentally incapacitated person?

The idea is that they could access small amounts of a mentally incapacitated person’s money without having to go through the process of getting an order from the Court of Protection. It would be an interim measure; something to have in place before long-term arrangements were finalised. The Ministry of Justice points out that the Scheme would be useful in situations in which families, friends and carers find the Court of Protection route ‘too complex or disproportionate to the amount of funds involved’.

The proposals include that:

  • Payments (of up to a combined sum of £2,500) could be made for a six-month period from one account
  • It would be possible to extend those six months once if the £2,500 figure had not been reached
  • The Scheme would be run by financial services firms, such as banks and building societies
  • The Scheme could be used by ‘someone who could prove their suitability, rather than just family members’

The consultation will be open until 12 January 2022, although there is some way to go before we will begin to hear how the views of participants could shape these proposals. A key consideration will be the Scheme’s security, as well as its ability to provide a simpler, faster and more straightforward process to navigate than that which is currently in place. But, as a lawyer who regularly helps families navigate these challenging issues, and as someone who personally manages the affairs of someone who has difficulties, I welcome the attempt to clarify and improve things for those trying so hard to serve and protect a loved one’s best interests.

For advice about OPAs, LPAs or Court of Protection applications, contact Vicky Mansell 0808 256 2917 or email [email protected].

Protecting Britney – the difficult question of control

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The much-publicised situation surrounding the private life of Britney Spears has made for illuminating reading for those unfamiliar with the US system of conservatorship.

Following concerns about the singer’s mental health more than a decade ago, the court-ordered arrangement was put in place which saw control of decisions about aspects of her life passed to her father. There have since been various claims that that conservatorship has taken away some of Spears’ human rights, and that too much control has been placed in the hands of others. The #FreeBritney movement has campaigned for the conservatorship to be brought to an end. And it’s been reported that Jamie Spears, Britney’s father, has now filed for that to happen.

Press reports of the types of restrictions placed on Britney, and of her feelings about the conservatorship, have been an uncomfortable read. We don’t know the facts; the details of the arrangement remain private. But for those of us who work to safeguard the best interests of vulnerable people, we’re confident that a situation like that of Britney Spears could be avoided in the UK.

We don’t have conservatorships in England and Wales. Our system is based around the Court of Protection, which steps in where necessary (and where there is no Power of Attorney in place) to protect vulnerable people who can no longer make informed decisions for themselves. The court decides whether or not the person has mental capacity, and appoints ‘deputies’ to make decisions for him or her if capacity is considered to have been lost.

‘Deputyship’ is therefore our version of conservatorship. It is the appointment of one or more adults – usually a family member or friend of the person who has lost capacity – to take care of decisions about health and welfare and/or property and finances. Deputies become responsible for deciding everything, from what should happen to the person’s investments, to where they should live and the healthcare they should receive. (An alternative would be to have an ‘attorney’ appointed under a Power of Attorney, or a Lasting Power of Attorney.)

Deputies don’t have to have any particular qualifications. Sometimes legal or financial professionals are appointed, but this isn’t always necessary. The overriding duty is for the deputy to act in what they reasonably believe to be the best interests of the mentally incapacitated person. Working out what is and isn’t in a person’s best interests may not always be straightforward, and deputies sometimes have a challenging time in deciding how best to handle particular situations. But guidance comes from the Mental Capacity Act, which includes that decisions must not be based:

  • merely on the basis of a person’s age or appearance; or
  • on the condition of, or an aspect of, the person’s behaviour which might lead others to make unjustified assumptions about what might be in their best interests.

Another key principle is that when deciding best interests, steps must be taken (where possible) to allow, encourage or help the person participate as fully as possible in any act done for him and decision affecting him. This is hugely significant, as it seeks to avoid a situation in which a deputy effectively railroads decisions. It reminds deputies that the mentally incapacitated person is the focus and may still have a voice.

There are some additional layers of protection, too. Deputies are expected to file information – including expenditures made – annually, documenting the decisions they have made. And this is overseen by the Office of the Public Guardian.

No legal system is without fault, but having worked with families to take care of loved ones, it’s clear to me that the Court offers vital protection for those most in need. It firmly places the needs and interests of the mentally incapacitated person at the heart of decisions. And I think people and families should take comfort from this. If mental incapacity strikes, there will be layers of support in place.

To talk in confidence about mental capacity, deputyship or about making a Lasting Power of Attorney, contact Emma Howlett 0808 256 2917 or email [email protected].

My father is becoming forgetful. Should we be thinking about legal protections for him?

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It is always concerning when a loved one appears less able to do things they once could. While slower bodies and minds are the unavoidable byproduct of ageing, you are certainly right to be thinking about the possibility that your father may at some point need greater help from those around him.

Depending on your father’s condition, you may want to look into any care needs he has now, and those he might need before too long. Is he living alone? Is that safe for him? Should you be thinking about lining up a different arrangement?

And one of the things I think you should definitely be considering is a Lasting Power of Attorney (LPA). This is a legal document that appoints someone, or more than one person, to take control of decisions about the day-to-day life, finances and wellbeing of someone who has lost mental capacity. There are two types of LPA: one for health and welfare, and one for property and finance. Quite often, the same attorneys (usually family members) are appointed in respect of each.

An LPA is made while a person still has mental capacity, and usually comes into effect if that capacity becomes lost. Timing is therefore extremely important. There is no point in thinking about the LPA option once a person no longer has mental capacity; they have to be shown to have the ability to make decisions for themselves in order to make a valid LPA.

Where a person has simply become forgetful, it is unlikely that they have lost mental capacity. The time would therefore be ripe to help put an LPA in place for your father.

What is mental capacity?

Mental capacity is someone’s ability to make a decision. Incapacity strikes when decisions can’t be made because of a temporary or permanent impairment of, or a disturbance in the functioning of, the mind or brain.

Being ‘unable to make a decision’ means not being able to understand relevant information, retain that information, use or weigh that information, or communicate the decision.

Why have a Lasting Power of Attorney?

If a person loses the ability to make decisions, the next best thing is for someone they know and trust to do that for them. An LPA allows this to happen very easily.

When someone loses mental capacity without having an LPA in place, there will usually need to be an application to the Court of Protection. That is the specialist court responsible for taking care of people who have lost mental capacity. It can appoint ‘deputies’ to act in much the same way as attorneys under LPAs and make decisions in the person’s best interests. A major difference, however, is that the person in whose interests decisions will be made has at that point no say in who becomes his or her deputy, whereas the ability to nominate attorneys via an LPA places that control firmly in the hands of the person at the centre of it all.

What about a Will?

An LPA is not an alternative to having a Will. The two documents do different things, and ideally people should have both in place.

While few people feel completely comfortable discussing Wills and other future plans with parents, it really is a good idea to bite the bullet. Encouraging loved ones to think ahead and to talk about the arrangements they have and could put in place can make so many things far easier in the long run.

To find out more about LPAs, Wills and future planning, or for advice on your particular situation, contact me on 01892 337540 or at [email protected].

Latest statistics show 18% drop in LPA applications and a jump in digital applications and grants of Probate

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The Ministry of Justice has released the Family Court statistics for January to March 2021, revealing that there were 195,734 LPAs received, down 18% compared to the equivalent quarter in 2020.

LPA applications had been steadily increasing, peaking in 2020 – largely brought about by increased publicity and the new online forms introduced in July 2015, making it simpler and faster to apply. As the pandemic took hold LPA applications declined and the first quarter of 2021 saw a significant drop.

Private Client legal adviser at Thomas Mansfield, Emma Howlett, said:

‘The latest UK-wide statistics are interesting. At Thomas Mansfield we have in fact seen a surge of interest in LPAs over the the last 18 months. As much as the pandemic has brought normal life to a halt, it has also sharpened focus on what matters. The future is uncertain and an LPA is a great provision to have made, in the event that you somehow lose the ability to take full care of your property and finances and/or your health and welfare. While the UK-wide statistics show a drop in LPA applications we expect this to increase as the UK exits lockdown and normal life resumes.’

The Family Court statistics also pointed to an increase in the proportion of digital applications and grants issued for probate. Since the Court introduced the online system, simple applications where the person died testate and there are no issues with the Will, have been dealt with efficiently and more quickly than paper applications.

However, the Family Court statistics for the first quarter of 2021 show that where a case has been ‘stopped’ for any reason (in the case of a dispute, issues with a Will or proposed Will, or if an error is identified and a request for further information made), probate grants took 13 weeks on average to be issued, compared to 5 weeks for those that were not stopped.

The full report is available at Family Court Statistics Quarterly: January to March 2021.

How are ‘best interests’ determined?

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Mental capacity is easily taken for granted. For those who have always been able to make decisions about their life, their money, their health and wellbeing, it’s not easy to imagine that being taken away.

But this happens. Whether through an accident or illness, someone can lose their mental capacity – instantly or gradually. And the repercussions affect not just the person at the centre of this, but also their loved ones who usually step in to take control of, or oversee, decisions that need to be made. These decisions include everything from what the person should eat from day to day, to whether they should sell their house and move into a care home, to what medical treatment they should receive.

Underpinning each of these decisions is one consideration: best interests. What would be in the best interests of the person who has lost mental capacity?

While best interests are sometimes easy to determine, there will be times when those responsible for making decisions will be unsure about what to do. In those situations, it can help to go back to the basics. And that starts with a piece of legislation called the Mental Capacity Act.

What best interests should not focus on

The Act says that decisions about best interests must not be made merely on the basis of a person’s age or appearance. Nor about the condition of, or an aspect of, their behaviour which ‘might lead others to make unjustified assumptions about what might be in his best interests’.

Steps to take when deciding best interests

All relevant circumstances must be taken into account, and the following (in particular) must be considered:

  • whether it is likely that the person will at some time have capacity in relation to the matter in question, and
  • if it appears likely that he will, when that is likely to be.

Steps must be taken, where reasonably practicable, to allow, encourage, or help the person to participate as fully as possible in any act done for him and any decision affecting him.

Things to take into account

  • The person’s past and present wishes and feelings. In particular, if the person made a relevant written statement when he had capacity, that should be considered.
  • The beliefs and values that would be likely to influence the person’s his decision if he had capacity.
  • Other factors that the person would be likely to consider if he could.

The decision-maker should also take into account the views of anyone named as someone to be consulted on best interests in the particular circumstances. Also, anyone involved in caring for the person or who is interested in his welfare; a person appointed under a Lasting Power of Attorney (LPA); and a ‘deputy’ appointed by the Court of Protection.

But how is the ‘best interests’ duty discharged? How does a decision-maker know that they have done the right thing? In some circumstances there may never be a clear answer to that. The most he or she can do (and this is set out in law) is to reasonably believe that what they do or decide is in the best interests of the person.

That is a point that should resonate with anyone who is considering putting plans in place for whatever the future may hold. Lining up a decision-maker to take control of your financial and property affairs and your health and welfare is a key aspect of this. It means you have someone you trust – and who you know will exercise their powers wisely – to take care of you, in the event that you lose your mental capacity. This is done via an LPA, the alternative to which is relying on the Court of Protection to appoint a deputy to safeguard your best interests.

Clients who make an LPA tell us they feel reassured to have their chosen attorney in place; someone they can count on to weigh up the pros and cons and to take the ‘right’ action. It’s future planning that we should all consider putting in place.

To find out more about making a Lasting Power of Attorney, or for advice about mental capacity, get in touch with me on 01892 337540 or at [email protected]