At some point in the future, an individual may suffer some form of physical or mental incapacity which prevents them from effectively managing their own affairs. This could be through an accident, illness, mobility difficulties or simply that you would rather have assistance or leave decisions to a trusted family member or friend.
Lasting Powers of Attorney (LPA) allow you to legally appoint someone you trust to make decisions on your behalf.
An important distinction between the two types is that a property and financial affairs LPA can be used by the attorney even when you still have mental capacity to make your own decisions, but a health and welfare LPA can only be used once you have lost capacity to make the relevant decisions yourself.
Choosing an attorney is a vital decision, and you need to think carefully about who you give the power to.
LPAs can be made at any time while you have capacity.
If someone becomes unable to make their own decisions due to a lack of mental capacity and have not created an LPA then an application will need to be made to the Court of Protection for a deputy to be appointed.
There are two types of deputy (although one person could be appointed to both roles) similar to the two types of LPA:
In addition, the Court may ask a deputy to provide specific information about a decision they have made or to provide supporting documents about a financial transaction. The Court may also contact social services or health authorities to request copies of the health and social care records of the person lacking capacity or request copies of care records from registered care homes.
The application is thorough with full disclosure of the persons financial assets and supported by medical evidence. Confirming the full extent of these can take several weeks before an application can be prepared and submitted to the Court, which can involve considerable fees.
At a time when someone loses capacity often there are associated stresses of moving into residential homes and health concerns so we would always encourage our clients to make LPA’s to remove the risk of family members or friends having to go through the Court of Protection ordeal.