Health and Safety - personal liability for directors operating in the built environment
There is nothing more awkward than talking to one’s parents about sex. Except maybe talking to one’s parents about their own impending death and mental decline.
No one likes to dwell on the fact that the time may come when parents may not be able to look after themselves. One might therefore be forgiven for being squeamish about talking to them about making a Lasting Power of Attorney (LPA). This is a document which your parents can use to appoint one or more people to make decisions on their behalf if they lack the mental capacity to do this for themselves.
By having this conversation sooner rather than later you can make the whole process easier for them, for you and for the rest of your family.
There is no time like the present. Talking to your parents about what will happen if they lose mental capacity is never going to be comfortable. However, if you do it while they are relatively young and while dementia seems a remote possibility then the conversation will be less poignant and painful.
Whether you talk to your brothers and sisters before you talk your parents depends on the personalities involved. On the one hand, you don’t want your parents to feel like they have been ambushed. On the other hand, you don’t want your siblings to feel like you are going behind their backs. Only you know how your family members are likely to react.
Even if you are nervous about causing a bit of a family row – don’t let this put you off. If your family dynamics are tricky then it is even more important to get LPAs in place while your parents can make decisions for themselves. If you wait until it is too late, someone will need to make an application to the Court of Protection to be appointed as Deputy. If you can’t agree who the Deputy should be, this could result in lengthy and expensive court proceedings. Your family relationships may never recover.
Your parents can appoint all of their children as attorneys if they wish. However, they should think carefully about whether this is a good idea. It is natural that your parents will want to treat you all equally but remember that being an attorney is a big responsibility. You might want to think of it as a chore rather than a favour.
Your parents should think carefully about whether each of their children is a suitable choice when it comes to financial matters. One of you may have a busy life due to a career or children of their own and may simply not have the time to carry out at attorney’s duties. Another may leave overseas. Another may have a history of being somewhat feckless and disorganised. Any one of these factors could make someone an inappropriate choice.
If your parents can afford it, they may wish to appoint a professional to be their attorney. This could be a trusted solicitor or accountant. This person will charge for acting but your parents may prefer to do it this way rather than putting a burden on their children or having to choose between them.
Try to respect and understand your parents’ decision and if they don’t choose you as one of their attorneys, try to think of it as them doing you a favour.
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 your parents choose who their attorneys will be. When it comes to health and welfare, it will be less relevant if the attorney is busy, overseas or not financially astute. In this case, treating all their children equally may be more important.
Choosing health and welfare attorneys is likely to be emotional for both you and your parents. If you can, try and have a frank conversation as a family about your parents’ wishes and feelings and go from there.
The short answer is – no. As a property and affairs attorney for your parents, you can make many decisions on their behalf. This includes running their bank accounts, selling their home and spending their 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 your parent, such as a spouse or any children under 18.
If you are their attorney and you make gifts which go beyond this then you risk exceeding your authority and being removed by the Court. This would be the case even if you are absolutely certain that this is what your parent would have wanted.
Your parents’ LPAs cannot be used until they have been registered by the Office of the Public Guardian (OPG). Your parents can register it themselves or their attorney can do it for them. 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 you 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 your parents are able to fix them.
Again, there is no time like the present. You do not have to be elderly to lose mental capacity. Younger people can lose 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 you are younger, your circumstances are more likely to change as time goes on and the people who you may choose as your attorneys may also change. This does not mean you should not make and register your LPA now. You are free to revoke your LPA at any time and make a new one. There is therefore no harm in being prepared.
For more information about this topic contact a member of the Private Client team.
You might also be interested to read our other blog on this subject 'Talking to your children about your Lasting Power of Attorney.'
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