Q&A - Should my parents have made an LPA even though they had an existing EPA?

01/10/2015

Q: My mum has dementia. She was recently admitted to hospital with other medical issues and is likely to require extensive care when she is released. My father and I would like to care for her at home rather than see her move into residential care.  I am her attorney under a registered Enduring Power of Attorney but the doctors have told me this only relates to financial decisions and not to her care arrangements. Is this correct?

A: An Enduring Power of Attorney (EPA) only gives you authority to deal with your mum’s property and financial affairs, not to make decisions about her care. In October 2007 Enduring Powers of Attorney were replaced by Lasting Powers of Attorney (LPA’s). There are two types of LPA – one for property and financial affairs, and one for health and welfare. The property and financial affairs LPA is similar to an old EPA. However the health and welfare LPA concerns decisions which historically an Attorney would not have been able to make, for example whether your mum is cared for at home or is moved into a care home.

Someone with an existing EPA can complete a Health and Welfare LPA enabling their attorney to make decisions on their behalf in this respect, but only if they have the requisite mental capacity. Assessing mental capacity of people with dementia can be difficult, however, so a doctor may need to carry out an assessment on your mum. If a doctor is not satisfied that she has the capacity to complete an LPA then you may need to apply to the Court of Protection to make care decisions on her behalf, which is an expensive and lengthy process.

Cases such as this underline the importance of completing Lasting Powers of Attorney while you are able to do so, whatever your age or circumstances.

Victoria Wilson

Victoria Wilson

Partner

A Partner and Part of our Probate, Wills, Trusts and Tax team in Oswestry