Elderly relatives need help to manage their finances after lockdown
It was announced by the Government this week that residential, care and nursing homes will be able to begin opening their doors to visitors once more following four months of closure to the outside world. Indeed, it has been almost a month since some care homes were able to welcome back family members into their outside spaces for brief and much needed visits with their residents.
However, as joyous an event as this will be for most families, for some it will become clear that a relative who had full capacity and was in full health prior to lockdown, may have changed significantly in the intervening months.
Rix & Kay are now receiving increasing cries for help from family members about relatives who are now no longer able to manage their finances, when they were previously fully self-sufficient.
So what steps should be taken now?
My relative has a General Power of Attorney
A General Power of Attorney is a document, granted usually on a short-term basis, which gives power of attorney to a third party. A General Power of Attorney can only be used to assist a person (the ‘donor’) with their financial affairs whilst they have the mental capacity to give instruction for the attorney to do so. If there is a concern about your relative’s capacity, we would advise that you arrange a capacity assessment to ascertain whether your family member can make a Lasting Power of Attorney to replace the General Power or whether a Deputyship application to the Court of Protection will need to be made.
My relative has a Lasting Power of Attorney for Property & Financial Affairs
A Lasting Power of Attorney can be made by a person with capacity, and appoints a third party to assist with financial matters both whilst the donor retains capacity and after capacity to make financial decisions has diminished. It may be time to consider whether your loved one’s Lasting Power of Attorney should be implemented by the attorneys if their capacity has changed during lockdown.
My relative has an unregistered Enduring Power of Attorney
An Enduring Power of Attorney is an old-style document, which was able to be prepared up until 2007. In its unregistered form, it can be used whilst the donor has capacity. However, an attorney under an Enduring Power of Attorney has a duty to register this document with the Office of the Public Guardian if they have any question about the donor’s capacity.
My relative is under a Deputyship Order
A Deputyship Order is granted by the Court of Protection if a person is assessed as lacking capacity to manage their financial affairs independently and they do not already have a Lasting or Enduring Power of Attorney in place. If an Order of this kind is already in existence, it suggests that this person is already receiving assistance with the management of their financial affairs. However, under the Mental Capacity Act, a deputy must always try to involve a person in their financial decision making where at all possible. If you have not been able to meet with your relative for some months, you may need to assess their ability to be involved in future financial decision making.
My relative has a registered Enduring Power of Attorney
Similar to the Deputyship advice as above, an attorney under a registered Enduring Power of Attorney must always evaluate the amount of involvement the donor should have in their financial decision making. These decisions may need to be reviewed if you have not been able to meet with the donor for some months.
My relative has a Lasting Power of Attorney for Health & Welfare
A Lasting Power of Attorney for Health & Welfare can be made by a person with mental capacity to ensure that future health and welfare decisions can be made on their behalf. This power can only be invoked if someone has lost capacity to make their own health and welfare decisions. If the donor’s decision making has been affected during the lockdown period, it may be time to assess which health and welfare decisions the person can make for themselves, and invoke the Lasting Power of Attorney if necessary for those decisions they are no longer able to make independently. It may also be sensible to update the person’s GP, so that their medical notes can be updated in case of an emergency need to review the Lasting Power of Attorney for Health & Welfare.
My relative has not yet put a Power of Attorney in place but retains capacity
Although making plans for the future must be the choice of the donor whilst they have the capacity to make these decisions, it may be time to discuss with your family member what insurances can be put in place to protect them in the future. Although we as a country are now venturing cautiously out of lockdown, there is the constant threat of a second wave of the virus, which could mean future lockdowns and closures for the care industry once more. Putting a Lasting Power of Attorney in place now may make matters more straight forward to deal with should restrictions tighten once more during the coming winter months.
My relative has not yet put a Power of Attorney in place and their mental capacity has changed during lockdown
Capacity is a complex area. A person can simultaneously have capacity to make decisions in one area of their life, but may lack mental capacity to make decisions in other areas. If you have concerns about your relative’s ability to make certain decisions, a capacity assessment can help to guide you towards whether a Lasting Power of Attorney would be possible, or whether an application to the Court of Protection for a Deputyship would be the only route available to assist with your loved one’s financial affairs.
Contact our Later Life Legal Team in Brighton & Hove, Uckfield and Sevenoaks
Our Wills & Estate Planning team receive daily enquiries regarding Lasting Powers of Attorney, and would be happy to discuss options with you or your family member about how make a Lasting or General Power of Attorney to suit your needs.
We are also able to arrange the registration of Enduring Powers of Attorney for attorneys who find the donor’s capacity has changed in recent months.
Our Later Life team are specialists in the field of Court of Protection and capacity issues. If your family member does not have a Power of Attorney in place, or if the documentation is out of date or no longer suitable, we can advise you of how to proceed with Deputyship applications to the Court of Protection.