A step too far – a warning for Private Prosecutors
Your children have flown the nest. They have jobs and children of their own. You are starting to enjoy a relationship as equals rather than parent and child and life is good. So why rock the boat by talking about what will happen if dementia sets in and everything changes?
You have probably already thought about making a Lasting Power of Attorney (LPA) to appoint someone to make decisions on your behalf if you are no longer able to do so. But you probably haven’t yet talked to your children about it. After all, it was not so long ago that they were dying their hair strange colours and bringing their laundry home.
It might be a good idea to have this conversation sooner rather than later. This will make the whole process easier for them and for you.
There is no time like the present. Your children may already be worrying about what will happen in the future but don’t want to bring it up for fear of offending you.
Your children love you and depend on you and won’t want to think of a time when your roles will be reversed and they will be the ones looking after you. However, the more remote this time seems, the less ‘raw’ the conversation will be. Why not get it over with now and you can all relax knowing it is sorted out?
You can appoint your spouse as your attorney and then appoint younger family members to step in if your spouse is no longer able to act.
You can appoint all of your children as attorneys if you wish. However, you should think carefully about whether this is a good idea. It is natural that you want to treat your children equally but remember that being an attorney is a big responsibility. You might want to think of it as a giving someone a job rather than bestowing a favour.
Some of your children may be more suitable then others when it comes to financial matters. One child may have a busy career or children of their own and may simply not have the time to carry out an attorney’s duties. Another may live overseas. Another may have a history of being somewhat feckless and disorganised. Any one of these factors could make someone a less appropriate choice.
If you can afford it, you may wish to appoint a professional to be your attorney. This could be a trusted solicitor or accountant. This person will charge for acting but you may prefer to do it this way rather than putting a burden on your children or having to choose between them.
There are two types of LPA – one appoints attorneys to look after financial affairs. The other appoints attorneys to look after health and welfare. The latter may extend to making decisions about end of life treatment.
The two LPAs deal with very different types of decisions and so different factors will come into play when you choose who will make these decisions for you. When it comes to health and welfare, it will be less relevant if the attorney is busy, overseas or not financially astute. When it comes to this type of LPA, treating all your children equally is more likely to be a good idea.
Choosing health and welfare attorneys may be very emotional for both you and your children. If you can, try and have a frank conversation as a family about your wishes and feelings and go from there.
The short answer is – no. Your property and affairs attorney can make many decisions on your behalf. This includes running your bank accounts, selling your home and spending your money.
However, attorneys are very restricted when it comes to making gifts to themselves and to others. As a general rule, this is limited to gifts to charities and on customary occasions, such as birthdays and weddings. The attorney can also make provision for someone who is financially dependent on you, such as a spouse or any children under 18.
An attorney who makes gifts which go beyond this will risk exceeding their authority and being removed by the Court. This would be the case even if they are absolutely certain that this is what you would have wanted.
If you want to make sure that your children and grandchildren are provided for once you have lost capacity then you need to plan for this. You can think about making gifts or even setting up a trust.
Your LPA cannot be used until it has been registered by the Office of the Public Guardian (OPG). Your can register it yourself or your attorneys can do it for you. It is almost always best to get the LPA registered as soon as it has been signed. This is for two reasons.
Firstly, it can take several months for the OPG to complete the registration process. If your attorneys wait until the LPA is actually needed before applying to register it then there will be a gap before it can be used. This can lead to problems, for example in paying care home fees and other bills.
Secondly, LPAs have to satisfy strict requirements to be registered and even minor errors can cause them to be rejected. It is best to pick up any such errors now while you are able to fix them.
You do not have to be elderly to lose mental capacity. Younger people can lose mental capacity due to a head injury, a stroke, being in a coma or substance abuse – in short due to things which can happen to anyone and which are beyond our control.
Of course, as your children are younger, their circumstances are more likely to change as time goes on and the people who they may choose as their attorneys may also change. For example, as a parent you may be the obvious choice now but this may not be the case in 20 years’ time. This does not mean younger people should not make and register an LPA now. They are free to revoke their LPA at any time and make a new one. There is therefore no harm in being prepared and so why not set a good example?
For more information please contact a member of our Private Client team. You may also be interested to read our other blog on this topic 'Talking to your parents about their Lasting Power's of Attorney'.
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