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Advance decisions and planning for the future

If you care for someone who may lose their ability to make decisions, it is easier to put plans in place now, rather than waiting for someone to lose mental capacity. We list some ways of putting plans in place to give you greater peace of mind.

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Lasting Power of Attorney

Lasting Power of Attorney is a legal document allowing you to make decisions on behalf of another person who is unable to make decisions for themselves, also known as losing mental capacity.

The person who gives permission for someone to make decisions on their behalf is called a donor. The person who makes decisions on a person’s behalf is called an attorney.

Attorneys have certain responsibilities when making decisions on behalf of the donor.

There are two types of Lasting Power of Attorney:
> Property and Financial Affairs covers financial and property decisions.
> Health and Welfare covers decisions about health and care.

You may wish to get both types of Power of Attorney registered at the same time, or you can do them separately.

When setting up a Lasting Power of Attorney for Property and Financial Affairs, the donor can arrange to allow their attorney to manage their finances before they lose mental capacity. Lasting Power of Attorney for Health and Welfare can only be used after a person loses mental capacity.

As Lasting Power of Attorney is a legal document, carers often put it off because they think it is too complicated or expensive. However, getting it sorted out can actually save a lot of headache.

There is no ‘next of kin’ rule in law which will automatically allow you to sort out your relative’s finances or care if they can’t decide for themselves. Lasting Power of Attorney can resolve this issue.

Remember, when making Power of Attorney, the donor must have the mental capacity to understand what they are doing. It is therefore best to sort it out sooner rather than later.

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How to set up Lasting Power of Attorney

A Lasting Power of Attorney must be registered with the Office of the Public Guardian. You can download the forms online or request paper forms by calling 0300 456 0300.

If you apply online, you will need to print out and post the forms with a written signature.

To set up your Power of Attorney, you will need:

> Name and details of attorney/attorneys.
> Name and details of donor.
> A certificate provider (to confirm that the donor is making the Power of Attorney of their own free will).
> Witness to signatures.

A certificate provider confirms that the person making the Lasting Power of Attorney knows what they are doing and isn’t being pressurised or coerced.

A certificate provider can be a professional, such as a social worker or solicitor, or someone who has known the person for two years or more and isn’t a relative or a partner.

It costs £82 to register a Lasting Power of Attorney. The cost has dropped in recent years, but you may be exempt from fees or get a reduced rate if you are on a low income. Check with the Office of the Public Guardian for more information.

While Lasting Power of Attorney is a legal document, you do not necessarily need to involve a solicitor. If you need support filling out the forms, contact the Office of the Public Guardian on 0300 456 0300.

If you do decide to use a solicitor, you will need to pay solicitor’s fees. It can be worthwhile getting quotes from different solicitors before making your decision. Visit Law Society for more information.

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Deputyship

If the person you care for has lost the mental capacity to make Lasting Power of Attorney, only the Court of Protection can appoint a decision maker to make decisions on their behalf. The decision maker is called a deputy.

If you wish to a deputy, you must apply to the Court of Protection.

There are fees to pay to be a deputy, including an application fee and an annual supervision fee, and a number of forms to fill in. It may therefore be helpful to plan ahead and consider appointing an attorney at an earlier stage.

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Advance statements

If the person you care for may be at risk of losing their ability to make decisions about their care, you may like to suggest they write an advance statement of their wishes.

An advance statement is a written document explaining a person’s wishes and preferences for future care.

For example, the statement could include faith beliefs, preferences and strong personal views e.g. dietary preferences, etc.

An advance statement is not a legal document and you don’t need to fill in a particular form. See the NHS website for more information.

Advance decisions

Unlike an advance statement, an advance decision (living will) is a legal document. An advance decision allows a person to say they wish to refuse certain treatment, including cardiopulmonary resuscitation (CPR) if their heart stops. Visit the NHS website for more information.

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Having tricky conversations

Thinking about losing your ability to make decisions can be frightening for many people. The person you care for may put off the conversation, or refuse to discuss it altogether.

It is important not to avoid the discussion until it is too late. Independent Age has some guidance on how to talk about who will make decisions in the future.

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