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Partner and Head of Family Law, Rugby
Dementia Action Week is a national event which runs from 17th May to 23rd May. It is a time to raise awareness of dementia and encourage individuals to take action to improve the lives of people living with dementia.
At Brethertons, we are supporting the event with other local businesses, by arranging to yarn bomb the Rugby Cup in the local town. We are asking for contributions of knitted forget-me nots (the Alzheimer’s Society symbol of dementia) for the yarn bomb. If there any knitters out there who would like to assist, these flowers can be dropped off at our Rugby office any time before 10th May.
It seems appropriate during Dementia Action Week to remind people of the importance of preparing Lasting Powers of Attorney (LPAs).
Why have an LPA ?
Whilst there is an increasing awareness in the importance of preparing Lasting Powers of Attorney and a better understanding of the importance of the documents, some people do not understand the consequences of not having them.
A Lasting Power of Attorney is a legal document which enables the donor to appoint trusted family, friends, or advisors to manage their financial affairs and health and welfare matters, in the event they become affected by mental health problems and lose capacity to manage their affairs themselves.
The important thing to note about a Lasting Powers of Attorney, is that an individual can only prepare the documents whilst they have the mental capacity to do so. It cannot be left until capacity has gone.
So, what happens if a donor has not prepared a Lasting Power of Attorney and has lost capacity?
Unfortunately, we come across this problem all too often. If there is not a valid Lasting Power of Attorney in place and an individual is unable to manage their own financial affairs, then a Deputyship application would have to be made to the Court of Protection. The applicant would be applying to a judge to be appointed as a Deputy, which will enable them to make decisions regarding the individual’s financial affairs.
In order to make the Deputyship application, several forms must be completed and submitted to the Court of Protection. The forms would set out the applicant’s details, the details of the person who has lost capacity, details of living arrangements and full financial information. A medical practitioner would also need to complete a medical assessment form and confirm that the individual lacked mental capacity to manage their financial affairs.
Once the application is submitted to the Court of Protection, it can take between six to twelve months for the process to be finalised. During this time, relatives chosen in a priority order set out by the Court, have to be notified that the applicant is making the application.
As the individual lacks capacity and is unable to express who they wish should act on their behalf, the Court have to consider the evidence provided to them before making a decision. This makes the process a lot more involved and the application requires much more detail. In turn, this is more time consuming, more expensive and can cause considerable stress and anxiety to the family.
In addition to the above, the Court of Protection is reluctant to get involved with decisions regarding Health and Welfare. It is very rare that the Court will appoint a Deputy to manage Health and Welfare matters generally on a day-to-day basis.
We hope that by discussing and highlighting these issues during Dementia Action Week, it will encourage people to think about their loved ones and the importance of creating documents that can avoid significant stress and legal headaches in the future.