Most of us are aware of Lasting Powers of Attorney (LPAs) – there has been a lot of press recently from Martin Lewis encouraging people to put these important documents in place. In brief, a Lasting Power of Attorney allows you to decide who will make certain decisions for you about your health care or finance, if you are no longer able to do that for yourself.
It is fundamental though that the person making the Power of Attorney understands the document, what it does and what the effect of it is. However, sometimes it is too late for a person to make an LPA – their illness may have advanced to a degree where they can no longer make an informed decision about creating an LPA, or there may have been a sudden event with no warning.
What happens in this situation? The only option for that person’s family is to make an application to the Court of Protection for a Deputyship Order. The application asks the Court to recognise that the individual has lost capacity to manage their affairs themselves and that someone should be appointed by the Court to make those decisions for them – the person appointed is called a ‘Deputy.’ They then have legal authority to act for the incapacitated person.
The Deputy operates in a similar way to an Attorney, they have similar duties and responsibilities, but as the Deputy is appointed by the Court, you remain under the Court’s supervision. Your powers are set out in the Deputyship Order and you must make sure you are aware of any restrictions in that document – for instance, the Order will often prevent a Deputy from buying or selling property on behalf of the incapacitated individual without further agreement from the Court. The Deputy is also required to submit an annual Report to the Court on the anniversary of the Order, and will be supervised by the Office of the Public Guardian.
There is also the possibility that the Court decides that the applicant is not suitable to be a Deputy and in that situation, may order that a solicitor or professional is appointed instead.
The costs of a Deputyship Order can be very high and the process of getting someone appointed can take several months – much longer that registering an LPA. Often, applications for a Deputyship Order are made when a crunch point has been reached and suddenly someone needs to be able to manage another person’s finances. This can cause a huge amount of stress if you are then having to wait for the Order to be granted before any finances can be accessed.
We find that people can be reluctant to consider making LPAs – they may feel they are too young, or that there is no one they would trust with the responsibility. However, these are incredibly important documents – they allow you to make the choice over who should act for you and although the process is not quick, it is much quicker and less expensive than a Deputyship Order application.
It will save a huge amount of time and stress if Lasting Powers of Attorney are in place well in advance. Your Attorney can swing into action when needed and there is no delay while arrangements are put in place, and no danger that it has been left too late.
If you need help and advice please contact Kathryn Caple, Partner and Head of Wills and Probate at Else Solicitors on 01283 526200.