Planning for the future

Many of us avoid thinking about how our loved ones would manage if we suddenly lost our mental capacity. While we are fit and healthy, we are reluctant to think about the consequences of experiencing an unexpected illness or injury.

Most people born today can expect to live a long and healthy life, but as we live for longer it means that we are more likely to encounter degenerative diseases such as dementia. Sadly, the number of people who lack mental capacity due to illness, injury or disability is expected to increase in future generations.

Lifetime planning is vital in protecting ourselves and our loved ones. By planning for the future, we can take comfort knowing that we have made key decisions about our financial affairs and care before we lose the ability to make decisions ourselves.

 

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What is a Lasting Power of Attorney?

Arranging a Lasting Power of Attorney (LPA) means that while you still have capacity, you can appoint someone of your choice such as a relative, friend or professional to make decisions and carry out your wishes in future when you no longer have capacity.

The person appointed is known as an Attorney. The Attorney will have authority to manage your affairs and make decisions regarding your finances and/or your health.

A Lasting Power of Attorney is not suitable if a person has already lost capacity. In those circumstances, it is necessary to apply to the Court of Protection for a Deputyship Order if there are important decisions to be made.

What is the role of the Court of Protection?

The Court of Protection in England and Wales deals with matters relating to the Mental Capacity Act 2005. The Court of Protection seeks to safeguard vulnerable individuals from exploitation. The Court refers to the individual who lacks capacity as the ‘Patient’.

Where the Court makes a finding that a Patient does lack mental capacity, the Court has the power to appoint a Deputy to make decisions on their behalf. Once appointed, the Deputy has authority to make important decisions. The scope of their powers will be contained and limited in the Court order.

Who can be appointed as Deputy?

The Court of Protection requires that a Deputy be at least 18 years of age and can demonstrate that they have the necessary knowledge to act.

Commonly relatives or friends are appointed as Deputy, however, if the individual’s circumstances are complex, it may be more appropriate to appoint a professional deputy such as a solicitor.

What type of Deputyship order do I need?

There are two types of Deputyship Order that can be applied for depending on what decisions need to be made.

A Deputyship for Property and Financial affairs is required when an individual has lost capacity to make decisions regarding their finances, and there is no LPA in place. An order is usually only necessary if the individual has substantial assets to manage. There are several legitimate reasons why a relative may need to access the Patient’s funds, for example, paying care fees, ordering medical equipment and arranging property adaptations. It can be an upsetting reality for relatives and spouses when they realise that they do not automatically have the authority to carry out these tasks on behalf of their loved one.

Acting as Deputy carries a great deal of responsibility. A Deputy for Property and Financial affairs is expected to carefully manage the Patient’s assets and any properties they may have. They must ensure that properties are adequately maintained and insured. The Deputy is responsible for banking, investing, and preparing tax returns on behalf of the Patient. The Deputy will have control of the day-to-day management of the Patient’s finances, accurate accounts of each transaction must be kept and reported to the Office of the Public Guardian on an annual basis.

Deputy for Health and Welfare

Some decisions regarding an individual’s general day to day care such as feeding, dressing, and washing can be made by relatives or carers without the need for legal authority. However, if a series of significant decisions are required regarding their medical treatment, it may be necessary to apply to the court for authority to make those decisions.

Deputyship orders for Health and Welfare are less commonly granted as the court recognises that relatives are often best placed to make sensitive decisions. Orders for Health and Welfare are often reserved for cases where there is disagreement between relatives and professional opinion.

If there is a single important issue to decide, it may be more appropriate to apply to the court for a one-off order.

The Court have provided one-off orders when conflicts have arisen in relation to:

  • Providing consent for medical treatment
  • Deciding where a person should live
  • Deciding whether a person should continue with life supporting treatment

Applying for a Deputyship Order

The prospect of applying to be appointed as Deputy can be overwhelming when faced with the bundle of application forms that must be completed and submitted to the Court. Common mistakes during the application process can lead to additional costs and lengthy delays. 

Our dedicated Deputy Legal team have a wealth of experience in preparing applications to the Court of Protection. Our team can provide tailored advice suited to your circumstances.

Our services include completing and overseeing the application process on your behalf. We will ensure that the papers are correctly filed and will manage any communications with the Court through to your appointment. Once the Court order appointing you as Deputy is received, we will explain the content of the order to ensure you are confident in making decisions as Deputy.