Becoming physically or mentally incapable of looking after your own affairs is a realistic issue for people of all ages. It is important to make provision so that someone you know and trust can take control or merely assist you with your financial or welfare decisions if you become physically or mentally incapable of doing so during your lifetime.
Enduring Powers of Attorney
Lasting Powers of Attorney (LPA) documents replaced Enduring Powers of Attorney in October 2007. By putting an LPA in place, you can choose who you would like to have authority to deal with your affairs (your "Attorney"). You may also restrict their powers so they can only carry out transactions that you are happy for them to deal with.
There are two types of LPA you can put in place. A Property and Affairs LPA gives your Attorney the authority to deal with your finances, pay your bills, decide how your financial affairs are managed and even assist in selling your house if required. A Personal Welfare LPA gives your Attorney the authority to make decisions about your healthcare and welfare. This can include deciding to accept or decline medical treatment on your behalf or decisions about where you should live.
It is vital that you choose people that you trust completely to be your Attorneys as you may become incapable of supervising their actions. It is now compulsory to register LPAs with the Court of Protection before they can be used. It is advisable to do this as soon as the document has been signed as it may be needed at any time and registration can take a number of months.
Anyone over the age of eighteen can put an LPA in place as long as they have the mental capacity to do so. A medical practitioner or solicitor must provide a Certificate of Capacity as part of the LPA. These documents can also be revoked at any time as long as the donor has the mental capacity to do so.
Discussing this with your solicitor and having the appropriate documents prepared well in advance of any physical or mental problems will save a lot of time and expense in the event that you become incapable in any way.
Applying to the Court of Protection for a Deputyship Order
If someone becomes mentally incapable of managing their own affairs and does not have in place a valid Enduring or Lasting Power of Attorney it may be necessary for a relative, friend or Solicitor to apply to the Court of Protection for a Deputyship Order.
Within the application forms the person applying will have to set out in detail the decision and specific order they wish the Court to make and the reasons why such an order will benefit the person who is alleged to lack capacity. They will also have to provide the Court with full details of the person's financial and personal circumstances. On submitting an application to the Court an Assessment of Capacity Form must be completed by a registered practitioner and enclosed.
The application process can often be complicated and time consuming. We can advise and assist with the Court's requirements for making an application including completion of the required forms, obtaining the necessary medical evidence and lodging the application.
Once the Court appoints a Deputy an order will be received setting out their specific powers in relation to the person who lacks capacity. The Deputy will then be required to liaise with the Court on a regular basis about the management of the affairs of the person who lacks capacity. We can also provide assistance to the Deputy with putting in place the necessary security, implementing any orders made by the Court and the requirements of general Deputyship Management.
For more information on Deputyship Orders please click here.
If you would like to know how Clough & Willis Solicitors can help you plan for your future contact Richard Phillips richard.phillips@clough-willis.co.uk or Ciara Hannawin, ciara.hannawin@clough-willis.co.uk.
