Britney Spears has been in the news a lot recently because she has applied to the Court to remove her father from controlling every aspect of her life under the US conservatorship system. Jamie Spears was appointed to be his daughter’s sole conservator in 2008. A documentary was made earlier this year called ‘Framing Britney Spears’ about Britney’s allegations that she was being exploited under the conservatorship for financial gain as a misuse of the Court-appointed power.

Under U.S. law, conservatorship is the appointment of a guardian or a protector by a judge to manage the financial affairs and/or daily life of another person due to old age or physical or mental limitations.

In the U.K., if someone wishes to act on behalf of a person who lacks mental capacity, they can apply for a deputyship order. This needs to be authorised by the Court of Protection and is strictly controlled to protect against any abuse of powers. Deputies are accountable to the Court and must submit an annual report to the Office of the Public Guardian to explain the decisions they have made, which must be in the best interests of the person who they are acting on behalf of. Unfortunately, this can be both expensive and time-consuming.

To avoid the situation of someone being appointed by the Court (who you may not wish to make decisions on your behalf), anyone over 18 years old and who is able to understand and make decisions for themselves (also known as having mental capacity) can make a lasting power of Attorney (LPA). This is a legal document which appoints people who you would like to act in your best interests, should you ever lose mental capacity in the future.

You can make two different types of LPA:

• Property & Financial Affairs LPA
• Health & Welfare LPA

Property & Financial Affairs LPAs allow your Attorneys to deal with your financial affairs, for example to operate your bank accounts and pay your bills, manage your investments, make gifts to family, friends or charities and sell your property (but only if it is in your best interests to do so). Unless you specify otherwise in your LPA, your Attorney can use your LPA while you still have capacity to make financial decisions yourself. If you allow your Attorney to make decisions before you have lost mental capacity, it does not mean that they automatically take all financial decisions for you, it just means that they can take these decisions if you allow them to at the time. This can be helpful if you are unwell or on holiday for an extended period of time.

Health & Welfare LPAs allow your Attorneys to make decisions about matters such as your medical treatment, your diet, where you live and how you spend your time. Unlike the Property & Financial Affairs LPA, your Attorneys can only use this LPA when you have lost the mental capacity to make decisions yourself. Your Attorney cannot make decisions about life-sustaining treatment unless you specifically allow this in the LPA. Life-sustaining treatment includes ventilation to help with breathing, feeding through a tube and resuscitation.

You can include specific requests and instructions in your LPAs to assist your Attorneys, should you ever need them to act on your behalf in the future.

In order for your Attorneys to be able to act upon an LPA, the document needs to be registered with the Office of the Public Guardian.

Due to an increase in the number of people living with mental conditions such as dementia, having LPAs in place can give peace of mind that, should you ever lose mental capacity in the future, you have Attorneys you trust appointed and ready to act in your best interests.

If you would like more information contact James Clarkson on 01484 821 300 or at jamesclarkson@eatonsmith.co.uk