I am often contacted by adult children – this job tends to fall to daughters – who ask “Should I get power of attorney for my parents?” It is also a frequently-Googled question. My answer is always “Yes, if it is still possible.”
The classic use of powers of attorney is for dementia sufferers. According to the website dementiastatistics.org, there are currently 850,000 people with dementia in the UK. This will increase to over one million by 2025, and over two million by 2050. Most of us will already know someone affected by this debilitating condition. It is critical to make your powers of attorney before dementia becomes too far advanced, otherwise it will become legally impossible to do so.
Making powers of attorney can be a sensitive subject, and may seem like a difficult conversation to have with your parents. The suggestion doesn’t tend to be well-received, particularly by older people who may themselves be becoming concerned that they are starting to become forgetful, and understandably will not wish to draw attention to it. Many people also have concerns that they would be giving up control and the ability to run their own lives by making powers of attorney. In fact, quite the reverse should be the case.
An attorney for property and financial affairs can act immediately the deed has been registered, but only with the donor’s consent. This means that if the donor wishes, they can ask their attorney (often an adult child) to help them out with some tasks that they have started to find burdensome, whilst still continuing to run other aspects of their affairs, as they always have done.
An attorney for health and welfare may not act at all until the donor has lost capacity to make decisions about their own health and welfare. In either case, one of the guiding principles behind the Mental Capacity Act 2005 is that a person should be encouraged and allowed to make decisions for themselves wherever possible.
“A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.”Mental Capacity Act 2005
For practical purposes, this means that often, once a person has made their powers of attorney, they can then be registered and put away safely for a rainy day, and they may not be used for many years.
Should a doctor be the certificate provider?
If there is any doubt about someone’s mental capacity, I always advise that a doctor should act as the person’s ‘certificate provider’ in their powers of attorney. The certificate provider is the person who signs to confirm that the client understands what they are signing and has not been put under any pressure to do so. Having a medical opinion on the client’s capacity on the day and at the exact time when they signed the deed is good evidence if the deed was ever challenged, which makes it more robust. The person making the deed does not need to have full mental capacity all of the time – they simply need to have a lucid interval on the day that they sign. In certain cases, it may be a question of the doctor needing to catch them on a ‘good day’ in order that they can make their powers of attorney.
What if I can’t get power of attorney for my parents?
In an ideal world, everyone would make their powers of attorney at an age and stage when their capacity is not in doubt. Sadly, I am frequently contacted by adult children asking me to make powers of attorney on behalf of their parents, when it turns out to be too late.
There is a fallback plan, which is to apply to the Court of Protection for a Deputyship Order to appoint deputies, which are much like attorneys. However, last time I spoke to the Court of Protection about timescales they advised that the applications were currently taking around 6 months to process, so this is a very long-winded, not to mention much more expensive, way to do things. Importantly, unlike with powers of attorney, the person will then have no choice over who is appointed as their deputy, to act in this crucial role.
The ‘worst case scenario’ which can occur if a person leaves it too late to make powers of attorney is embodied very clearly in the following comment on popular parenting website, Mumsnet, in response to someone asking whether she should get power of attorney for an elderly parent:
“I couldn’t get POA (father wouldn’t hear of it) because by the time he needed it he was already incapable of understanding what he was signing. Had to go to court for Legal Guardianship which has both financial and welfare aspect. And cost £2,078. And took 7 months.
POA will make things much easier. My Dad was in hospital for more than a year as a direct result of the no POA situation. He couldn’t make the decision to move, and I couldn’t make it for him. And as he has to pay towards his care, and I couldn’t access his funds, a care home wouldn’t accept him anyway.”Mumsnet Poster, “Money Matters” Chat Board
The moral of the tale is that if you find yourself asking “Should I get power of attorney for my parents?”, the answer is bound to be “Yes”. If you would like to discuss making powers of attorney for your parents, please get in touch.
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