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Partner and Head of Family Law, Rugby
Whilst there is an increase in the awareness of Lasting Powers of Attorney and a better understanding of the importance of the documents, some people still do not understand the consequences of not preparing them.
A Lasting Power of Attorney is a legal document which enables you to appoint trusted family, friends or advisors to manage your financial affairs and health and welfare matters, in the event you become affected by mental health problems and lose capacity to manage your affairs yourself.
The important thing to note about Lasting Powers of Attorney is that you can only prepare the documents whilst you have the mental capacity to do so.
So what happens if you have not prepared a Lasting Power of Attorney and you lose capacity?
Unfortunately, we come across this problem too often. If you do not have a Lasting Power of Attorney in place and are unable to manage your own financial affairs then a Deputyship application would have to be made to the Court of Protection. The applicant would be applying to be appointed as your Deputy, which will enable them to make decisions regarding your financial affairs.
In order to make the application, a number of forms must be completed and submitted to the Court of Protection. The forms would set out the applicant’s details, your details, your living arrangements and your financial information. A medical practitioner would also need to complete a medical assessment form and confirm that you lack mental capacity to manage your 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 you would not have the capacity to express your wish as to who should act on your 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 for your 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. Therefore if you did not have a Lasting Power of Attorney in relation to Health and Welfare matters, the Court is only likely to get involved if there is a problem or issue that needs to be resolved.
We hope that by discussing these issues, together with Dementia Awareness Week approaching, it will encourage you to take control over who makes future decisions on your behalf if you were to lose capacity.
If you would like more advice please contact our Wills, Trusts & Probate team.