Preparation for lack of mental capacity is your responsibility and choice
Preparation for mental incapacity is about planning your well-being and welfare for when you may be vulnerable. Making and registering a legally binding document called a Lasting Power of Attorney allows you the opportunity to prepare in advance of possible incapacity. You choose and appoint who will help you; you say how they will help you; and you say when they will help you. This person is called an Attorney. As an adult it does not matter how young or old, rich or poor you are, life changing events and illness can happen at any time and you may need support temporarily or permanently.
The difference between a Will and a Lasting Power of Attorney
Many people think that a Will is all encompassing. This assumption is wrong. A Will takes effect from the moment you die. A Lasting Power of Attorney helps you before you die at times of vulnerability. Needing help can last for many years.
Your next of kin does not have an automatic legal right to help you
If you want your next of kin to help you it must be stated in a registered Lasting Power of Attorney England and Wales (or equivalent for other jurisdictions). This document will give them the legal authority to help you. Your next of kin will be known as your Attorney.
Being prepared for mental incapacity can save you thousands of pounds in legal fees and administration costs
The Mental Capacity Act 2005 (England and Wales) gives you the opportunity to prepare for mental incapacity by making and registering a valid Lasting Power of Attorney with a one off registration fee. If not prepared and you suffer mental incapacity someone is likely to be appointed by the Court of Protection to help you. This person is called a Deputy. Application to the Court of Protection; on-going supervision of the case by the Office of the Public Guardian; and the administration of your affairs by the Deputy (especially professionals) will incur fees. Costs are your responsibility. The need for help can last for many years, and paying for that help can be extensive. Other jurisdictions in the UK have similar laws and process.
The Mental Capacity Act 2005 (England and Wales) provides safeguards to protect you
If you prepare and register a Lasting Power of Attorney, your Attorney(s) agrees to follow the Core Principles of the Mental Capacity Act 2005 and follow the Mental Capacity Code of Practice. Your Attorney(s) has a duty to act in your best interests, if they don’t they may be held accountable by the Office of the Public Guardian who can investigate and take action on your behalf.
If you are injured and mentally incapacitated, insurance companies require a person with legal authority to be in place before an award can be released.
The Armed Forces Compensation Scheme (AFCS)
For members of the Armed Forces Community who lack mental capacity the AFCS requires a person who has legal authority to be in place before a compensation claim is progressed or a third party can be appointed by Service Personnel and Veterans Agency (SPVA) (MOD Armed Forces Compensation Scheme Statement of Policy Chapter 6).