As our population gets older, more and more people are finding themselves responsible for caring for elderly relatives. This is certainly not an easy role to play, especially when there are complex care needs involved.

In many cases, supporting a loved one to move from their own home into a care home or nursing home may seem like the best solution. Some elderly people will agree that this is the right choice. Others may resist, even if they’re finding it difficult to manage at home.

If you’re in this situation, you might wonder if a power of attorney would help.

What is a power of attorney?

 The term ‘power of attorney’ refers to a type of legal document an individual can make in order to safeguard against the possibility of not being able to make their own decisions in the future.

Having a power of attorney such as a Lasting Power of Attorney (LPA) in place would mean that a donor (the person who makes the power of attorney) could appoint an attorney or attorneys to legally make decisions on their behalf should they become incapacitated.

There are two types of LPA. The first gives the power to make decisions based on health and care needs, while the second gives the power to make decisions based on financial needs. An individual can choose to make both types of LPA or just one.

Enduring Powers of Attorney are a type of power of attorney that were used prior to the introduction of LPAs. Enduring Powers of Attorney that were made before 2007 can still be registered and acted upon.

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When does a power of attorney come into effect?

A power of attorney may not come into effect for many years after it’s been registered. In some cases, it may not ever be needed. This will depend on the type of power of attorney it is, as well as any special instructions contained in the document itself.

A financial LPA will usually come into effect right away, unless otherwise specified. However, this is not the case with health and care LPAs.

If you’ve been appointed as an attorney in a loved one’s health and care LPA, you will only be legally able to start acting on their behalf when the donor no longer has the mental capacity to make their own decisions.

Once an LPA comes into effect, it may or may not be permanent. If your loved one has been diagnosed with dementia or Alzheimer’s disease and this has deteriorated to the extent where the LPA becomes necessary, it’s likely that this will continue to be the case. Alternatively, an LPA may be used if an individual is temporarily unable to make decisions due to a treatable illness or unconsciousness.

If you think your loved one is no longer able to make decisions themselves and that their LPA should come into effect, you will need to seek professional advice. The donor will need to be assessed by a health or social care professional who has been trained as a mental capacity assessor.

Would a power of attorney allow you to make a decision about care homes?

If you are caring for a loved one and feel the time is right for them to move into a care home, the first thing to do is to talk to them about it. You may find that your relative agrees with you and is open to discussing all available options.

The situation may be more difficult to handle if your loved one resists the idea of moving or if they are too unwell to have a conversation about it.

In these cases, having a health and care LPA in place could enable you to make a decision in their best interest. You would need to contact your local authority, who would arrange for an assessment of your relative’s mental capacity.

Whether the LPA would give you the legal right to act would depend on whether the assessor believed your loved one no longer had the mental capacity to make their own decision on the matter.

Are there any exceptions to this?

If you have been appointed as someone’s attorney, you have a legal obligation to make decisions in that person’s best interest. If the local authority or the individual’s health care team did not believe your decision was in the donor’s best interests, they would be able to intervene. Other interested parties (such as family members) would also be able to seek legal advice if they felt decisions were being made that didn’t align with the donor’s best interests.

It’s also important to understand that as an attorney you would not be able to solely make any decisions for the donor that benefitted yourself. For example, if you owned a property in equal shares with the donor, you would not be able to make the decision on your own to move them into a care home and sell the house, as this would benefit you financially.

Is there more support available for this?

If you’re considering the possibility of moving a loved one into a care home and want to better understand the process, we can help. Why not download a copy of our free ebook Caring for an Elderly Relative?

Your local authority will also be able to advise you on the best way forward.

How Roche Legal can help

We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:

Need further help?

If you would like guidance about any aspect of your role as a Power of Attorney, or if you are concerned about somebody who may no longer have capacity to make their own decisions, please do not hesitate to get in touch with us.

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