Q&A - Why won’t Enduring Power of Attorney set up after my father died allow me to make decisions about my mum’s care?

Q: My mum has had a stroke and is likely to require considerable care when she is released from hospital. Mentally she is fine; it’s just her mobility and speech that’s a problem, but I would still like to care for her at home rather than see her moved into residential care. However, the doctors won’t agree, even though I have a registered Enduring Power of Attorney that we set up after my dad died more than fifteen years ago. They say this only relates to financial decisions and not to care arrangements. What can I do?

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. From what you say, your mum has mental capacity but possibly does not have the ability to communicate her wishes. If this is the case 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 people completing Lasting Powers of Attorney while they are able to do so, whatever their age or circumstances.

(Article published 04.09.2017)

Victoria Wilson

Victoria Wilson

Partner

A Partner and Head of our Probate, Wills, Trusts and Tax team