Death and Taxes Part 5

8/4/2019 Death and Taxes Part 5

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Death and Taxes

The fifth in a series of five short articles looking at what can happen if we lose our

mental capacity and become incapable of managing our own affairs.

Part 5

Lasting Power of Attorney deciding who will make Health and Welfare decisions

This is the alternative to Advance Directives which we looked at in Part 4.

The first thing to say is that if you already have an Enduring Power of Attorney (EPA)

made under the Enduring Powers of Attorney Act 1985 it wont work for Health and

Welfare matters. You can leave it in place for Financial Matters but you need to make

a new Lasting Power of Attorney for Health and Welfare matters. It does not have to

be the same attorney as your EPA nor as your Property and Financial AffairsAttorney. It can be who you like. The person or persons whom you trust to make

decisions about your health an welfare if you arrive at the position when you cant do

it.

Can I have one now?

Of course not! The government and the courts run this scheme as well as the Finance

and Property Scheme so if you start today, you wont have an LPA for 13 weeks. But

there are good reasons for the delay.

How does a Lasting Power of Attorney (Health and Welfare) work?

Heath and Welfare decisions can be about where you live, whether you go to a Care

Home or a Nursing Home and whether or not or indeed how you are treated for

certain illnesses or in certain situations. Anything that people caring for your whilst

you are ill might ask you, then if you are incapable of giving a rational answer, they

must ask you Health and Welfare Attorney and listen to what they say.

You decide whom you trust make health and welfare decisions for you if you become

mentally incapable it can be just one or as many people as you like. Of course the

more there are, the less likely it is that they will all agree! You can appoint just one

person to act, perhaps your husband or your wife. If you appoint more than one thenyou must say if you want them to be able to act jointly which means that they must

agree about everything, or jointly and severally which means that each can act alone.

If you really want to complicate things, you can say that your attorneys must agree

and act jointly for some things like selling land or the house or transactions over a

certain sum but can act individually when doing other things.

Most people keep it simple by having one attorney such as the spouse or appointing

the children jointly. You can also appoint reserves in case your attorney(s) die or

become incapable of acting. If you only appoint one attorney and no reserves then no

one has any power to act if your attorney is no longer able to act because they are

dead, bankrupt, have disclaimed, lack mental capacity or if they were married to you


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or were your civil partner, and have now had the marriage or civil partnership

annulled or dissolved.

You can write the LPA in such a way as to take immediate effect your attorney(s)

can immediately start to make decisions on your behalf even though you are still

capable of making those decisions or you can write it so that no-one can makedecisions on your behalf until you are mentally incapable of making that decision at

that time. You do this by adding a restriction in the box provided.

There is one very important decision which you need to make before embarking on

this exercise and that is

Do I want to give my attorneys authority to give or refuse consent to life-

sustaining treatment on my behalf?

You need to read the question carefully. You are not committing your attorney to

saying Yes! Pull out all the stops to save him or No just let him slip quietlyaway If you have strong feelings about this then perhaps an Advance Directive is for

you rather than a Health and Welfare LPA. The decision you are making is that

should this terrible choice ever raise its head, do you want you attorney to be able to

say yes or no to treatment which will save your life or would you rather that they did

not have such a power.

You must make this decision quite early on and have it witnessed as you sign it.

Safeguards

Some responsible person must provide a certificate to say that you know what you are

doing when you sign the application form.

You put a list of people to be told on the application form. These people have to be

told when someone applies to register the LPA and they can object.

Six weeks of the 13 week delay mentioned earlier is to give people to be told time to

object.

Who is a person who lacks capacity?

Whenever the term a person who lacks capacity is used, it means a person

who lacks capacity to make a particular decision or take a particular action for

themselves at the time the decision or action needs to be taken.

Registration

Once the application is made then it has to be registered either immediately by you or

later by the attorney(s) when you become mentally incapable. If you do wait whoever

is registering the LPA will have to pay the fees and there will be another delay. The

main advantage of immediate registration is to ensure that there are no mistakes to

pop up and haunt your attorney(s) in years to come.


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Registration doesnt set things in stone. You can cancel a lasting power of attorney at

any time before or after it is registered as long as you have mental capacity to cancel

it.

The Fees have to be paid on registration that is 120 (Shortly to be 130) for each

LPA. Remember there are two types, one for money and property decisions and onefor health and care decisions. So the government gets two fees if you do one of each.

The health and care fee can be avoided see Part 4 of this article.

You get a discount on the fees if your annual income is low.

Income Discount

12,000 or less 100% - No fee to pay

12,001 and 13,500 75 per cent

13,501 and 15,000 50 per cent

15,001 to 16,500 25 per cent

16,501 or more 0% - Pay entire fee

How do I go about it?

The easiest way to make a Lasting Power of Attorney is to pop along to a local

solicitor and get him to help you to do it. You should expect to pay anything between

150 and 1000 depending on the solicitor. Of course you can shop around. The local

branch of Age UK (used to be Age Concern) Ash House Cook Way, Taunton TA2

6BJ 0845 643 4621 may well be able to give you some pointers. Dont be shy about

asking solicitors what they will charge you!

If you are confident with a keyboard there are a couple of companies who will do an

LPA on line. They are not necessarily solicitors but usually will writers. You can find

them by typing Lasting Power of attorney online into Google.

One such firm quotes

Single Lasting Power of Attorney - Property & Financial Affairs' - 34.95

Pair of Lasting Powers of Attorney - Property & Financial Affairs' - 54.95

Single Lasting Power of Attorney - Health & Welfare' - 34.95

Pair of Lasting Powers of Attorney - Health & Welfare' - 54.95

Government fees of course are extra and there may be further extras. I just dont

know.

Or you can do it yourself. by going to the Directgov website

http://www.direct.gov.uk/en/index.htm

and putting attorney in the search box and then selecting Making and registering a

Lasting Power of Attorney.

The address for this page is

http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/

Mentalcapacityandplanningahead/DG_186373
http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Mentalcapacityandplanningahead/DG_186373http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Mentalcapacityandplanningahead/DG_186373http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Mentalcapacityandplanningahead/DG_186373http://www.direct.gov.uk/en/Governmentcitizensandrights/Mentalcapacityandthelaw/Mentalcapacityandplanningahead/DG_186373


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You can download the forms and the guidance notes and fill in the forms in your own

time. When registering you post the forms to

Office of the Public Guardian:

PO Box 15118

BirminghamB16 6GX

Philip Boyd

Stockland Bristol

First Published in

The Stockland Gatepost

Published Monthly

Publisher: Ray Johnstone-Smith (01278) 652830

Editor: Jon Smailes (01278) 652210

Treasurer: Geoff Taylor (01278) 653282

Advertising: Geoff Taylor (01278) 653282

Printing: C/O Jon Smailes (01278) 652210

Delivery: Gill Trelfa (Stockland)

Robin Prowse (Steart)

All material for publication should be sent to:

The Editor, Sunny Lawn, Stockland Bristol,

Bridgwater, TA5 2PY or, preferably, e-mailed to

[email protected]

Documents

Death and Taxes Part 5