Have you ever asked yourself?
Looking for legal advice for yourself or an elderly loved one? We’ve answered some of the need to know questions to help point you in the right direction
What happens if I can’t make decisions in the future?
There are many reasons that you may one day become unable to make decisions about your own financial assets or physical wellbeing, for example if you lose mental capacity through an illness like dementia. In this situation, having a Lasting Power of Attorney (LPA) in place allows you to choose family members or other trusted individuals (‘attorneys’) to be authorised to make decisions on your behalf.
There are two types of LPA, one of which concerns decisions about your property and finance, the other, decisions about your health and welfare. Both of them are extremely powerful legal documents. A property and affairs LPA allows your attorney(s) to make important decisions about the management of your property, bank accounts, and bill payments. A health and welfare LPA allows your attorney to make choices around your care plans, medical treatment, and end of life wishes.
A property and finance LPA can be activated before you lose capacity, so if you decide you no longer want to manage your own finances, you can pass this responsibility on to your chosen attorney whenever you wish. A health and welfare LPA is only activated once you are deemed by a medical professional to have lost capacity.
What are my options if I don’t have any family?
Deciding how best to manage your money and health when you get older can be difficult, even when you’ve got family around to help. So for people who have no close family, these important decisions can cause a lot of worry.
But you can still create a Lasting Power of Attorney (LPA) if you don’t have any children or other close family members in whom to entrust your affairs. Many people in this situation choose to ask friends to act as their attorneys; alternatively you can ask a professional such as a solicitor who specialises in this area of the law to act for you. Note that solicitors will be entitled to charge for this work and can explain the possible costs involved.
How can an LPA help ensure that my assets are protected for my family?
It’s common knowledge that having a will in place can help protect your assets for your family in the event of your death, but what happens if you lose capacity to make your own decisions before you die? A lot of people are understandably worried about who might act on their behalf if they cannot do so themselves because of a mental or physical disability. By making a LPA, you can discuss who might be most suitable for this role and understand what their responsibilities will include
A property and finance Lasting Power of Attorney (LPA) can give you peace of mind about who handles your cash savings, investments, and family home, allowing you to outline your preferences for how they are dealt with (including how any care is paid for) up until your death.
Knowing what to include in the preferences section of your LPA can be daunting, and often involves difficult conversations with your family. A specialist solicitor can work with you and your chosen attorneys to think through some of the possible scenarios that may arise, helping you to make the best decisions based on your personal circumstances.
What happens if I need to go into a care home?
Should you require a higher level of care than can be provided for you in your own home, you and your family may decide that moving into a care home is the best option for you.
Moving into a care home does not affect your Lasting Power of Attorney (LPA), and you will not be assumed to have lost capacity as a result. However, in the event that you do lose capacity before moving to a care home, having an LPA in place is the best way of ensuring that your preferences are implemented regarding the type of care you receive and how it is financed.
Most available care home funding is means-tested, so if your assets are calculated to be above a certain threshold (usually including any property that you own), you will in most cases be expected to pay privately. The preferences section of your LPA allows you to suggest how you wish for your care to be funded, for example whether you want to sell or let your home, or to borrow funds against its value from Social Services. Any preference you state in your LPA will be evidence of what is in your best interest and therefore something your attorney(s) should take into account.
It is important to get professional, impartial advice to ensure that any preferences you outline in your LPA are suitable for your circumstances. A specialist solicitor can help you to explore your options for care financing, so that you can make a fully-informed decision about the financial choices you would like your attorneys to make on your behalf.
Can my attorney(s) claim any benefits, either on my behalf or for themselves?
In the event that you lose capacity, you are still entitled to claim any benefits that you would otherwise receive. Depending on your age, financial situation and personal circumstances, these may include Pension Credit, Attendance Allowance and bereavement benefit, among others. While there is no dedicated state benefit for those fulfilling the role of an attorney, if your chosen attorneys are caring for you in any capacity (for example if they are family members who give you additional help beyond their duties as an attorney), they may be able to claim other benefits, including Carer’s Allowance. It is important to note that any benefits you receive may be taken into account when calculating the amount you need to pay for care services in the future, such as the costs of a care home. You can plan ahead for this situation by using the preferences section of your Lasting Power of Attorney (LPA) to specify which benefits you wish to receive in the event of a loss of capacity. However, the best course of action for you depends on your personal circumstances, so you should seek advice from a specialist solicitor, who can help you and your family to discuss your options in full.
What protection do I have against financial abuse and fraud?
Financial abuse, another name for stealing or defrauding someone of their goods and/or property, is a crime frequently committed against vulnerable older people. However, it can often be difficult for an older person to address, either because the perpetrator is a family member, or because the victim is afraid of not being taken seriously.
The government has taken positive steps in recent years to address this issue, giving financial abuse a legal definition in 2015 via the Care Act (a policy designed to protect people who are not able to look after themselves in some way), and through strict guidelines from the Ministry of Justice for anyone who is helping another individual with their finances. These guidelines apply equally to anyone helping you handle your money, regardless of whether they are an appointed attorney, a court-appointed deputy, or just a friend or family member giving you informal help.
The best protection that you can give yourself (and anyone who is helping you) is to create a Legal Power of Attorney (LPA) with the assistance of a specialist solicitor. You can create separate LPAs to cover decisions relating to your property and finances, and to your health and welfare. The process of creating an LPA with a solicitor minimises the risk of fraud and financial abuse by ensuring that both you and your attorney(s) are fully aware of your respective rights and obligations, now and in the future.
If you are worried that you are at risk of financial abuse and want to discuss your concerns or get some advice, contact the Action on Elder Abuse helpline on 080 8808 8141.
What will it cost me to see a lawyer?
Some lawyers may charge a fixed amount for their services for example a Will or an LPA.
Other lawyers will charge an hourly for the amount of time they will spend on your case. The hourly rate will vary from practice to practice, and is dependent on the lawyer’s qualifications and experience. As a general rule, the more experienced the lawyer, the higher their rates are. All time is charged for, which includes time spent in meetings with you, telephone calls, emails and faxes made and received, preparation, research and drafting time as well as letters sent.
All firms must set out in writing details of how they calculate their fees, whether they are charging a fixed amount or are charging by the hour. If they are charging by the hour, if possible, they should provide an estimate of the costs. An estimate is a guide and, as such, is not a fixed cost. (You may wish to set a limit on the charges and then when the costs reach the limit, you can decide what to do. This allows you to regularly review the time being spent and how your case is progressing.)
Is Legal Aid available?
Most of the work undertaken by SFE members does not qualify for Legal Aid. However, if the matter relates to community care, mental health, deprivation of liberty, public law issues or welfare benefits, help may be available if the firm you have selected has a contract with the Legal Services Commission for work in this area. To qualify for legal aid, you must be on a low income and your case can then be assessed to see it if qualifies for legal aid.
My parent/relative is getting older - what can I do to prepare for when they need help?
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.
My parent/relative has lost capacity to make decisions – what can I do to help them?
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.
What legal responsibilities do I have as an attorney?
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.
How do we fund my elderly relative’s care?
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.
A professional deputy has been appointed for my elderly relative. What does this mean and what can they do?
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.
What happens when my parent or elderly relative dies?
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.