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Partner and Head of Family Law, Rugby
“I’m still young.”
“I’ll get around to it at some point.”
“It won’t happen to me.”
We regularly hear the above reasons not to make a Lasting Power of Attorney (LPA).
A number of things can cause loss of capacity. Many people associate it with ageing and perhaps with developing a neurological problem such as dementia. Whilst that could be the case, it might be that you suffer a brain injury from a car accident or something as simple as suffering a serious fall.
If you’re still not convinced then let me tell you about a process that I deal with regularly…
A Deputy is a person appointed by the Court of Protection to manage a person’s finances and property or health and welfare. Please note that a separate application is required depending on which aspect of support is required. Day to day they have the same role as an Attorney under an LPA – they step into the shoes of the incapacitated person (“P”) and act as if they were them. They are required to act in P’s best interests at all times, and for this reason the Deputy must be someone trustworthy. An LPA would have allowed them to make this decision whilst they still had capacity, but unfortunately once capacity has been lost it is for the potential Deputy to make an application.
I will explain the process to appoint a Deputy in respect of financial matters only.
In order to become a Deputy you must apply to the Court of Protection and ask them to appoint you. There can be more than one Deputy and you might wish to appoint a professional such as a solicitor. The Court requires very detailed information about P’s finances as well as confirmation that the proposed Deputies are free from various financial ‘black marks’ such as County Court Judgments and bankruptcy.
The Court will also require a capacity assessment from a medical professional, preferably one who is already familiar with P, to confirm that P has lost the capacity to manage their finances (though they may still have capacity in other respects).
If P jointly owns a property, for example with their husband or wife, then this may also require a separate application for someone to be appointed as trustee in the event that the property needs to be sold.
Once the application has been submitted, it can take up to a month for the Court to process and issue the application. Once that has happened a number of people will need to be notified of the application, including P themselves. There is a very short, fixed timescale for when these people should be notified and it is important to go back to the Court confirming that notification has happened as soon as possible. This will provide people with an opportunity to raise any specific concerns they may have around the appointment of the Deputy directly to the Court.
After the Court has been informed of this, it takes a number of weeks before the Court will issue the order appointing the Deputy. The Deputy must also look into paying a bond, which is like an insurance policy in case the Deputy does not adhere to their obligations and P suffers financial loss as a result.
The above is a condensed version of what is involved in making an application for a Deputyship. It can take up to a year from when investigations begin to receiving the final order – and in the meantime, no-one can access P’s funds as no-one has the authority to do so. This can be extremely frustrating as P’s money cannot be used for their every day needs like paying for their food and utility bills.
The Court currently charges £385 as a one-off fee for making an application. If you instruct a solicitor then their professional fees will be charged in addition to this. Solicitors’ fees for preparing a Court of Protection application are significantly more than their fees for preparing an LPA - this is because of the time it takes to gather all of the necessary information and collate it into the relevant forms to send to the Court.
I have already mentioned that Deputies are required to act in P’s best interests at all times. This is monitored by the Office of the Public Guardian (OPG) whom also receives any concerns or complaints that third parties might have about the Deputy.
Becoming a Deputy is not something that should be taken lightly. The OPG also requires a yearly report from the Deputy which is a detailed summary of all actions taken during the past year. This includes any significant decisions that were made and a record of everything that P’s money has been spent on.
In addition, a Deputy must safeguard P’s assets, claim any benefits or pensions to which P is entitled, deal with any tax affairs and comply promptly with any other directions given by the Court.
LPAs can act as an insurance policy against loss of mental capacity. You put it in a drawer and hope you never need it, but it’s there in case the worst happens. This will hopefully provide both you and your loved ones with peace of mind, having chosen who you wish to appoint as your Attorneys under the LPA. We would always advise clients to consider making an LPA, and here at Brethertons we offer a fixed fee for preparing LPAs which includes an initial capacity assessment to ensure that you are able to make a valid document.
If the worst has happened and there is no LPA (or Enduring Power of Attorney) in place, we can assist with applying to the Court of Protection and in some cases we can also act as Deputy. Assistance with the application is offered on a fixed fee basis and you are advised to get in touch with us if you think this is something that your loved one might need.
If you would like to discuss making an LPA or applying for a Deputyship order then please contact the Private Client team.
Banbury: 01295 270999
Bicester: 01869 252161
Rugby: 01788 579579
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