With dementia now being the leading cause of death in the UK, it’s perhaps more important than ever to consider what would happen in the even that you become incapacitated and can’t make decisions for yourself.
The solution, if you’ve had the opportunity to think about it, is lasting power of attorney (LPA), whereby you donate the power to deal with your financial and/or healthcare affairs to a trusted person, known as an attorney.
There are separate LPAs for financial matters and healthcare matters. Each gives the attorney instructions and the discretion to make decisions on behalf of a person who has lost the mental capacity to make those decisions for themselves.
You can nominate more than one attorney and the attorney is duty-bound to act in the best interests of the donor. Until 2007 LPAs were known as enduring power of attorney, but these were open to abuse and the law was changed.
An LPA doesn’t begin until a person has lost capacity, whereas a EPA began from it being signed. If you took out an EPA it is likely still valid.
Lasting power of attorney can help with the day-to-day decisions in the event you lose capacity and many law firms have specialist teams to deal with lasting power of attorney. Some, such as these solicitors in Chelmsford, also have lawyers with accredited Solicitor for the Elderly status and awarded the SFE Older Client Care Practice Award.
But what if a loved one loses capacity and hasn’t nominated an attorney?
Becoming a Deputy
In this case you can apply to the Court of Protection to become a person’s deputy. As long as there is no attorney, and the court is in agreement that the person has lost the capacity to make decisions for themselves, you can be appointed a deputy.
If there is an existing power of attorney the court will not overrule the person’s decision to appoint that person, so you should always check that there is no attorney before you make an application to be a deputy. If the attorney is deceased, been removed, or has lost capacity themselves you can make an application to become a deputy.
If you can’t find any paperwork and are unsure you can contact the Office for the Public Guardian to see if an attorney has been registered.
How Long to Become a Deputy?
It takes a long time, usually around 6 months, to become a deputy. During that time you cannot make decisions on that person’s behalf nor conduct any financial transactions (such as paying bills) until it is in place. If there are not direct debits in place you will need to contact any creditors and make financial arrangements.
If you pay bills from your own money you will be able to repay yourself upon receiving deputyship from the courts. But the money cannot be taken from the incapacitated person’s funds until a deputy has been granted.
Because of the different parties involved it is an expensive process too. But this is because the levels of scrutiny are much higher than if a person was donated lasting power of attorney. The court will need proof of a person’s limited capacity and these medical reports must be paid upfront (and can’t come from the incapacitated person’s funds).
As part of the process the family or close friends of the incapacitated person are notified and a time is given for them to respond, should there be any objections.
Court fees have to be paid upfront too, but again these can be repaid from the incapacitated person’s funds once deputyship has been granted.
But… You Get Help
A deputy is supervised, which can be beneficial to people who have never done it before. Each year a deputy is required to submit a report to the Office of the Public Guardian, detailing any income and expenditure. It’s designed to protect a loved one. You will also be required to pay annual insurance (which can come from the funds of the incapacitated person) in case there is a financial error, such as using the person’s money in a way the deputyship order does not allow for.
No-one knows the future, but it makes sense to plan ahead where you can. Getting a lasting power of attorney is the easiest option and can really help when it comes to the day-to-day decisions. You will also have more input if you make decisions while you can.
Lasting power of attorney only starts if you lose the capacity to make decisions for yourself.
If you want more information you can contact the Office for the Public Guardian.