Have You Got The Power?

March has been the month when Spring officially begins, animals start to come out of hibernation and there are daffodil buds all around. It is also a time when we had the chance, on Mother’s Day, to show our mother, stepmother, grandmother or maternal carer the extent of our love and appreciation of all that they do.  But how can you really say thank you to the mother that gave you the gift of life, especially if they are elderly and roles are reversed, and you are the one caring for them?

The best gift at this stage of their life is to talk to them about the importance of a Lasting Power of Attorney. Whereas a Will looks after your assets when you die, a Lasting Power of Attorney allows you to appoint one or more people, known as Attorneys, to have the legal authority to make decisions on your behalf should you lose mental capacity.

There are two types of Lasting Power of Attorney:

Health and Welfare includes powers to make decisions related to your daily routine, medical care, where you should live and whether life sustaining treatment should be continued or refused. This can only be used when the person is unable to make their own decisions.

Property and Financial Affairs includes powers to allow your Attorney to access your bank account, pay your bills, collect your pension or benefits and sell your property.

If mental capacity is lost and there are no Lasting Powers of Attorney in existence, then this can lead to a lot of distress. Any bank accounts would be frozen, even if held jointly, and an application would have to be made to the Court of Protection which is a lengthy, expensive process during which time no money can leave the account to pay bills or fund care.

I always compare Lasting Powers of Attorney with travel insurance. You hope that you won’t ever need to use it, but would never consider going on holiday without it.  Similarly, if all goes well, your Attorney may never need to use your Lasting Power of Attorney on your behalf. However, if you should be unable to look after your affairs and you don’t have one in place, the alternative is not worth thinking about.

One of the most distressing examples of this was the experience of the family of 86 year old dementia sufferer Betty Figg. Concerned about her mother’s health and state of mind, her daughter Rosalind took it upon herself to refurbish and adapt her house so that she could care for her mother at her home, and subsequently removed her from her private care home. Her mum’s first words when she was settled at the kitchen table in her daughter’s home was “Put the kettle on love..I’m parched!” Rosalind felt that she had got her old mum back!  However, less than 48 hours later, social workers arrived with police and a battering ram to remove Betty from her daughter’s home. The family could only stand by in disbelief when they saw their dear mother wheeled out of the house with a tea towel thrown over her as she was bundled into a vehicle and driven off. Unfortunately Betty hadn’t taken out a Lasting Power of Attorney and so Rosalind was not able to make decisions on her mother’s behalf.

Another example is the widely reported case of Ylenia Angeli, a retired nurse, who was arrested for removing her mother from a care home following a dispute about her health. Having had no contact with the family for many months due to the current restrictions in place, Ylenia believed it was in her mother’s best interest to be brought to her home. However, as Ylenia was not an Attorney, she did not have the legal right to make that decision.

Whilst some believe that a Lasting Power of Attorney is only needed as you get older, this is simply not the case. It may be an accident, a stroke or a sudden illness that renders you unable to make your own decisions, as this challenging unprecedented year has clearly shown.

Unfortunately, TV presenter Kate Garraway currently faces this situation after her 53 year old husband Derek contracted Covid at the beginning of the pandemic, and is still continuing to receive treatment in hospital.  Derek didn’t have a Lasting Power of Attorney so Kate is unable to access his financial affairs causing her practical difficulties every day.

On a personal level, when an ambulance arrived to take my husband to hospital due to symptoms of Covid, I had no reason to worry about accessing his financial affairs or making decisions as to his health or welfare as, luckily, we have our affairs in order and I could concentrate on my three children and day to day tasks.

These real-life situations clearly illustrate the importance of a Lasting Power of Attorney for everybody. It’s never too early to make one, just don’t leave it too late.

Samantha Anastasiou – Solicitor