The prospect of losing your mental capacity, whether through illnesses such as Dementia and Alzheimer’s or because of a life changing accident, is difficult and upsetting for any person to deal with, but imagine if your family were unable to help you because financial or medical institutions did not recognise them as having any legal authority to do so.
This is a common issue for people who are not aware of the implications of dealing with someone’s affairs when they no longer have the capacity to do so themselves and, sadly, I have come across many situations where a person’s family are struggling to try to raise funds to pay for care home fees or medical treatment because they are unable to access the person’s bank accounts.
There are two options to assist people in this situation, dependant on whether someone has capacity to make their own decisions or not.
In circumstances where a person still has their mental capacity, they can apply to the Office of the Public Guardian to appoint an “Attorney” to deal with their affairs under a Lasting Power of Attorney (LPA).
There are two types of LPA appointing power for two different aspects of a person’s life – Property and Financial Affairs and Health and Welfare. A Property and Financial Affairs LPA can be used whether or not someone has the mental capacity to make decisions for themselves, and therefore it is also very helpful if you become physically unable to carry out your own financial affairs, for example, you become unable to get to the bank and need someone else to do this for you. A Health and Welfare LPA can only be used when you lose mental capacity and not before.
There are three main people involved in the application:
The Donor – this is the person who is giving the power to an Attorney;
The Certificate Provider – this is the person who signs the form to confirm that the Donor has the capacity to give the Attorney power to deal with their affairs;
The Attorney/s – the person/s being appointed to deal with the Donor’s affairs.
It should be noted that this application process can only be commenced whilst the person has capacity to confirm that they understand the powers they are giving to their Attorney, which is confirmed by the Certificate Provider at the time the they sign the LPA.
If a person does not have the mental capacity required to make LPAs, then a representative can apply to the Court of Protection for a “Deputyship” to allow them to act on their behalf. This can be applied for by a family member, friend or even the relevant social services department, which could result in someone handling their affairs that may not have been appointed by the person who has lost capacity.
The process for dealing with an application to the Court of Protection (COP) is very expensive and long winded. The Court fees jump from £110 per application for an LPA to £440 per COP application and solicitor’s fees also increase in light of the additional work required.
The COP forms are far more complicated than those of an LPA and they have to be put before the Court for review. Each applicant wishing to be appointed as a Deputy has to justify to the Court why they are the right person to deal with someone’s affairs and the Court has to approve their application, sometimes with a Court Hearing that will require all applicants to attend. This is very different to an LPA where the Donor is the person confirming who they want to deal with their affairs, which, although reviewed by the Office of the Public Guardian, is taken to be as the best evidence that they believe their Attorney is the best person to deal with their affairs.
Let’s face it, nobody likes to think about the prospect of losing their mental capacity at some point in their life, but the alternative to planning for the future can save you and your family a lot of difficulties and distress if the worst case scenario occurs. It’s never too early to plan for your future.