Planning for loss of capacity is one of the kindest things you can do for the people you love and a Lasting Power of Attorney (LPA) lets you choose who will make decisions about your health, welfare, finances and property if you cannot do so yourself.
If an LPA is not in place and someone loses capacity, the Court of Protection may need to appoint a deputy to act instead, which is a more cumbersome and lengthy process.
We help clients grant LPAs, register existing LPAs, and navigate the Court of Protection to ensure that challenging decisions are made with care and dignity.
We can also advise on Advance Decisions – also known as ‘Living Wills’.
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What is an LPA and what does it do?
A Property and Affairs Lasting Powers of Attorney enables you to appoint others to look after your financial and property affairs.
An LPA may come into effect immediately or may be drafted so as only to come into effect at a later date, or upon the happening of a defined event – e.g. if the grantor becomes mentally incapable of dealing personally with his property and affairs.
An LPA can cover:
- Property and financial affairs. Eg. dealing with property, paying bills and managing bank accounts.
- Health and welfare, including decisions on medical treatment and care arrangements.
You can appoint more than one attorney and set rules for how they must make decisions and when each attorney or replacement attorney steps in to act.
An LPA must be signed and registered with the Office of the Public Guardian before it can be used.
A certificate provider must confirm that the person making the LPA understands it and is signing freely. We can act as your certificate provider.
General or Specific Power of Attorney
A General Power of Attorney (POA) gives general authority to a trusted person or people whilst you still have mental capacity. The attorney will act under your instructions and will be able to make decisions on your behalf in respect of all your sole assets.
A specific power of attorney might be used if you are travelling abroad, to authorise another relative to continue with a house sale or manage a rental property in your absence.
A POA will automatically end if you lose capacity or if the specific purpose is completed. It does not need to be registered.
Duties and responsibilities of attorneys
Attorneys must:
- Act in the donor’s best interests at all times.
- Keep accurate records of decisions and any money spent on the donor’s behalf.
- Avoid conflicts between their interests and the donor’s interests.
If an attorney acts improperly, they can be required to repay funds or face other legal consequences.
If you are unsure about your powers as an attorney, or you suspect another attorney is not acting correctly, contact us for advice.
Court of Protection and deputyships
If someone lacks capacity and no valid LPA exists, you can apply to the Court of Protection to be appointed as a deputy.
An application to the Court of Protection for the appointment of a deputy is normally made when a person:
- Is mentally incapable
- Has not made an enduring power of attorney or a lasting power of attorney (and is mentally incapable of doing so)
- Has assets which need to be used or dealt with for his benefit, or need otherwise to be administered
Any person may be considered by the Court to act as a Deputy. This may be a relative or friend or may be a professional person, such as a solicitor. *
*Where medical evidence has been provided (and there appear to be sufficient assets to warrant the appointment of a deputy) but there is no-one willing or able to apply, the Court may direct the Public Trustee to make an application.
A deputy can make decisions about property, finances, health and welfare. Applications are formal and often require medical evidence and a detailed statement of the person’s assets. The Court supervises deputies and requires regular reports.
Deputyship applications are costly and time-consuming, which is why we recommend putting LPAs in place early where possible. However, we can help you navigate the Court of Protection process if you find yourself in the position of needing to manage a love one’s finances without an LPA in place.
Solicitors’ costs in dealing with such an application will usually be met from the incapacitated person’s funds.
What to do if you need help
If you find yourself in need of advice on Lasting Powers of Attorney or Court of Protection issues, you should speak with a qualified and experienced solicitor as soon as possible.
We will walk you through the entire process and ensure that your wishes (or the wishes of your loved ones) are represented and respected.
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