As social care budgets are squeezed and the National Health Service staggers under an ever- increasing workload, it’s inevitable that it increases concern for those of us who are charged with the care of an elderly or vulnerable relative. You might already be concerned about the long-term future of a relative suffering from a debilitating mental health condition like Alzheimer’s or motor neurone disease. You might also be worried that as their condition deteriorates they will become more vulnerable and will inevitably be unable to make decisions for themselves. You may simply be fearful that their disabilities will make it increasingly difficult for them to make the best decisions about day-to-day care and their longer-term health care needs.
Well, there is help available to you to ease some of these concerns. There is a legal solution – a Personal Welfare Power of Attorney – that might help to solve some of the problems your relative could potentially face in the coming months and years. A Personal Welfare Power of Attorney is a recognised document, which will address the issue of legal responsibility.
It will give you the power to appoint someone to act as your Attorney: someone you trust to make decisions on your behalf. A Personal Welfare Power of Attorney allows your Attorney to make decisions about where you should live, your day to day care (including your diet and dress), who may have contact with you and importantly, the refusing or consenting to medical treatment on your behalf.
Obviously as this is a legal document it will need to be registered with the Office of the Public Guardian before it is used, and that can take anything up to 12 weeks at the moment: however, once a person is registered an attorney they will be able to make decisions on a relative’s behalf either when they no longer wish to do so themselves, or when they feel incapable of making these important decisions. The law refers to this as ‘lacking mental capacity’.
A solicitor will be able to offer further information and advice about the legal definition of ‘lacking mental capacity’, but in essence a person is defined as lacking mental capacity if they have an injury, disorder, disability or condition which affects the way their mind works. The consequences of this might mean they have difficulty making decisions all of the time, or take them a long time to make a decision. It’s important to stress that the definition of lacking mental capacity has nothing to do with age, disability or appearance: it’s simply a matter of having the capacity to make difficult decisions.
Sometimes the issue of determining mental capacity is straightforward: at other times, however, the conclusions can be more difficult to reach. A solicitor can decide if someone is capable of making decisions or understanding things such as a will or a Lasting Power of Attorney. If they are in any doubt, they can get an objective opinion from a doctor or another appropriate professional. If there is a disagreement about the condition, the Court of Protection has power to decide whether someone has mental capacity or not.
Registering a Lasting power of Attorney
A Lasting Power of Attorney can’t be registered and used immediately, and the amount of time you might have to wait can change. As mentioned earlier, the current waiting time to register a Lasting Power of Attorney is 12 weeks. During this time the Office of the Public Guardian will check the application to make sure there are no problems. There is also a six-week period when other people have a chance to object to the Lasting Power of Attorney.
Your relative can fill in Lasting Power of Attorney forms for themselves, or they can ask someone to fill in the forms for them. The one note of caution that needs to mentioned is that Lasting Power of Attorney forms can be complicated documents, so the wisest course is to seek professional legal advice, particularly if there are complicated details (such as finances) or specific instructions for the attorneys involved.
Harold Stock & Co Solicitors are experts on all matters relating to Lasting Power of Attorney and has a proven track record of dealing with these difficult issues speedily and efficiently. If you would like any further advice about Personal Welfare Powers of Attorney, then please contact us on 01457 835597 or email firstname.lastname@example.org.