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Regardless of age or health, everyone should consider a Lasting Power of Attorney.

Regardless of age or health, everyone should consider a Lasting Power of Attorney.

Every day we make decisions about our lives. Thinking and talking about what would happen if our faculties deserted us is uncomfortable. 

Yet it's important to consider how difficult and complex the situation would be for your loved ones if you had, for example, a stroke, serious accident or dementia without putting something in place to ensure that your affairs could be managed should the worst happen.

The ability to make decisions is called mental capacity. People may not be able to make decisions some or all of the time, perhaps because they have a learning disability, dementia, brain injury or have had a stroke. It's important at this point to note that living with a mental health condition (depression, bipolar disorder, schizophrenia, for example),doesn't necessarily mean that someone lacks capacity. 

The Mental Capacity Act 2005 says a person is unable to make a decision if they can't do one of the following:
• understand information relevant to a decision
• retain that information long enough to make the decision
• use or weigh that information
• communicate the decision

A Lasting Power of Attorney (LPA) is a legal document that can be drawn up by anyone over the age of 18, nominating trusted family members or friends to look after their affairs if they should lose capacity. 

Don't worry that you would suddenly give up control. You can choose whether an LPA can be used either before, or only when, you lose mental capacity. It can be used to assist you whilst you have mental capacity. Your representative can only ever make a choice for you if you're unable to make that specific decision at the time it needs to be made. For example, if you fall into a coma, your representative would start looking after your affairs. Yet if you wake from the coma, you should be able to make your own decisions again. 

Mention an LPA and many will automatically think of a person's finances, but there are actually two types to consider: one for finance and property, and another for health and welfare. 

In short, the health and welfare document sees a nominated individual make decisions over day-to-day healthcare and medical treatments, as well as deal with any health and social care staff. 

Just because you give the trusted person power of attorney over your health, that doesn’t mean they will automatically gain control over your financial affairs and vice versa. If you require the same individual to have power of attorney over both aspects of your care, then you will have to fill out the two forms separately.

Another key difference is that the health and welfare LPA can only be used after the person loses capacity, not before.

Without a LPA, your loved ones will need to apply through court to become 'deputy' if should you lose mental capacity - this a long and expensive process.

It's important to remember that you can only set up an LPA when you have mental capacity. Once you've lost capacity, it's too late so the key is to act early.

For further advice or help about setting up a Lasting Power of Attorney, please contact Iain Robson on 01325 466461 or email iain.robson@close-thornton.co.uk

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