Nobody likes to think about a parent or loved one getting older or reaching the end of their life, but planning ahead can prevent many difficult situations from arising. Your first step should be to find out whether your loved one has a will in place, to ensure that their wishes surrounding their property and assets are upheld in the event of their death.
However, before they pass away, your parent or relative may reach a point where they lose the capacity to make their own decisions, either through physical ill health or because of a condition like dementia. In this event, having a Lasting Power of Attorney (LPA) in place allows them to entrust their affairs to named individuals (‘attorneys’), who are authorised to make important decisions on their behalf.
There are two types of LPA, one of which concerns decisions about property and finance, the other, decisions about health and welfare. Both of them are extremely powerful legal documents, allowing attorney(s) to make important decisions about the management of property, bank accounts, and bill payments, and choices around care plans, medical treatment, and end of life wishes.
For decisions around property and financial affairs, an individual can activate their LPA before they lose capacity, so if your lovedone decides they no longer want to manage their own finances, they can pass this responsibility on to you immediately. For decisions around health and welfare, an LPA is only activated once the individual is deemed to have lost capacity.
As a family member, your relative may ask you to act as an attorney for their LPA. You may be asked to share this responsibility with other attorneys (such as siblings), and you will be required to complete and co-sign the LPA application. There are many factors to consider as an attorney, such as whether your relative wants you to act jointly with any other attorneys (meaning that you must all make decisions together), or joint and severally (meaning that you can each make decisions about your relative’s affairs separately as well as together).
Completing an LPA application is an extremely complex process and often raises difficult issues for families around sensitive topics like inheritance and end-of-life wishes. Instructing a specialist solicitor to help with your application is the best way to ensure that everyone involved is confident about the process, and that the best interests of your loved ones are served, both now and in the future.
While the best way for your parent or loved one to protect themselves in the event of a loss of capacity is to ensure that they have a Lasting Power of Attorney (LPA) in place, sometimes capacity is lost before they have a chance to apply for one.
In the event that your parent or relative loses mental capacity before applying for an LPA, you must apply for a deputyship from the Court of Protection (CoP).
Deputyship applications can be time-consuming, stressful, and expensive – potentially costing families thousands of pounds in legal and court fees. An application typically takes around four months to be approved by the Court, but can take much longer. Meanwhile, decisions over an individual’s long-term care and finances are frozen.
To act as a ‘deputy’ for your parent or relative’s affairs, you must provide the CoP with medical evidence of the loss of capacity, as well as lodging an extensive application and arranging the necessary insurance.
A specialist solicitor can help you to gather the required documents and complete the forms correctly, and can also act as a deputy if you prefer not to take on this role yourself.
If you are named as an attorney for a Lasting Power of Attorney (LPA), you will be required to sign the form, agreeing to act on the behalf of an individual (the ‘donor’) should they lose the mental capacity to make their own decisions, or (in the case of a property and financial affairs LPA) if they decide that they no longer want to handle some or all of their own affairs.
There are two types of LPA, one of which concerns decisions about property and finance, the other, decisions about health and welfare. Both of them are extremely powerful legal documents, allowing you as an attorney to make important decisions about the management of the donor’s property, bank accounts, and bill payments, and choices around their care plans, medical treatment, and end of life wishes.
Your primary responsibility as an attorney is to act in the best interests of the donor, following their expressed wishes and preferences regarding decisions about both their assets and their wellbeing. To fully understand and consider the implications of agreeing to act as an attorney, it is strongly recommended that you (along with the donor and any other attorneys) seek advice from a specialist solicitor before making an LPA application.
It is very common for people to require additional care as they get older, either within their own home or by moving into a care home. Having a health and welfare Lasting Power of Attorney (LPA) in place ensures that you, as the attorney, can act upon your relative’s wishes or preferences around the care they receive, should they lose capacity. Without an LPA, it can be difficult for you to make decisions regarding the type, level and quality of care your loved one receives.
If your relative for whom you are an attorney has lost capacity and has not outlined any preferences in their LPA, you will need to decide how their care will be funded. There is a cost attached to any care service, the level of which can vary depending on your relative’s individual circumstances.
There are a number of benefits to which your relative may be entitled, which can often still be claimed beyond the point at which they lose capacity, including Pension Credits, Attendance Allowance and bereavement benefits.
If you are providing any care for your relative as well as acting as their attorney, you may also be able to claim Carers Allowance.
If moving into a care home is the best option for your relative, there are significant financial decisions to make. While there is some state funding available for care home fees, much of it is means tested, so if your relative’s assets are calculated by their local authority to be above a certain threshold, they will in most cases be expected to pay privately for their own care.
The value of any owned property may be taken into account when calculating this threshold depending on your relative’s individual circumstances, such as whether they live alone or with a spouse or partner. Often, decisions need to be made about whether to sell or let the property, or whether to borrow money against its value from social services.
By putting an LPA in place ahead of time, your relative can specify their preferences about these types of decisions. A specialist solicitor can help you as a family to discuss the various options available, ensuring that everyone involved is fully informed and confident about any difficult decisions that may need to be made in the future.
If your relative has lost the mental capacity to make their own decisions but does not have a Lasting Power of Attorney (LPA) in place, the Court of Protection can assign a ‘deputy’ to deal with your relative’s affairs.
While this deputyship is usually granted to a family member, if there is no suitable candidate within the family, the court can grant it to a professional, such as a solicitor. The deputy must ensure that any decisions they make are in the best interest of the individual for whom they are acting, and can only make decisions as allowed by the court. The deputy cannot make a will on behalf of the person who lacks capacity, other than by a Court application (called a ‘statutory will’) and they cannot transfer property or large sums of money into their own name.
The appointed deputy will need to make detailed accounts of your relative’s financial affairs, a process that can be extremely time-consuming for your whole family. To avoid the stress and hassle of the involvement of a professional deputy, the best course of action is to seek advice from a specialist solicitor who can help your relative to create a legally robust LPA before the point at which they lose capacity.
Dealing with the death of a loved one can be extremely difficult, and finding out what you need to do at the time can be overwhelming. Preparing for the situation can help prevent what is an already upsetting time becoming even more stressful.
If you are named as an attorney in a Lasting Power of Attorney (LPA) for your parent or relative, your legal responsibility ends when they die. However, there are several important matters that must be dealt with promptly after someone dies, including notifying the person’s financial institutions and utility providers, so as a family member this may be left to you to oversee.
If your relative has left a will, you may also be named as an executor. There is no obligation to accept this role, even if you have previously acted as an attorney for an LPA. In the event that no family member wishes to undertake the responsibility as executor themselves, a solicitor can take on this role. If you have been appointed as an executor, you can also ask your own solicitor to act for you, as your attorney.
The executor of a will must ensure that the death is registered as soon as possible and obtain the death certificate, and convey the deceased’s wishes regarding funeral arrangements. They will also be required to obtain a Grant of Probate to deal with the deceased’s assets, estate and any debts.
If your relative has not left a will (commonly known as ‘dying intestate’), the situation is more complex. A ‘grant of letters of administration’ must be applied for in order to distribute the deceased’s estate, however only certain family members are entitled to do so, with those eligible including any surviving spouse or civil partner, followed by children, then parents, siblings, grandparents and any aunts/uncles.
A specialist solicitor can advise on wills as well as LPAs, both of which can help make the period following the death of a loved one as pain-free as possible for the whole family.