You may have been asking yourself this and wondering if you need Power of Attorney? Firstly, there are two types: Property & Financial Affairs and Health & Welfare and you can read more about them below.
Being appointed an attorney gives that person far reaching powers and you should read on if you think it would not benefit you.
You may be shocked to learn that it is now common for banks to freeze joint bank accounts once they become aware of a loss of mental capacity for one of the joint parties.
It can also be problematic to sell property and especially so where joint tenancy of a home has been severed. Investments cannot be altered even if they are performing poorly. If this resonates with you, you do need Power of Attorney.
Without being appointed as attorneys under a LPA those who would be trying to help them in difficult circumstances will not have any authority to manage their affairs.
Where a local authority cannot access a person’s funds to pay for their care they may themselves apply to the Court of Protection requesting the Court to appoint a professional deputy. The cost implications are very significant as the professional deputy is remunerated at pre-agreed rates from the assets of the person concerned.
These can often prove to be just as important… and probably best illustrated through the following examples:
Consider this scenario: A lady has lost capacity and is living in a care home. Her daughter visits her regularly and takes a keen interest in her welfare. She notices that her Mother has a number of bruises and feels concerned. She speaks to the manager of the home, expresses her concerns and is not happy with the explanation that “oh she keeps falling”. She says to the manager that she would like to take her Mother for a drive and once she gets Mother out she decides to take her to her back to her own home with the intention of making alternative arrangements. So far so good; but in the morning Social Services are knocking on her door accompanied by the Police having arrived to take her Mother straight back to the same home. Without a Lasting Power of Attorney she does not have the authority to decide where her vulnerable Mother lives.
In another scenario, a Mother who has lost capacity is fortunate to be living in a very nice care home with wonderful committed and caring staff; but because there are no LPAs in place her own funds cannot be accessed and her daughter has felt obliged to make the payments.
Scenario A. Daughter runs out of money and cannot continue to pay. The local authority now have to step in and meet the costs, but this care home is more expensive than their budget so now Mother is moved across town to another less costly home. Unfortunately it simply isn’t as good and because her daughter doesn’t drive she is unable to see her Mother as frequently as she used to.
Scenario B. This lady’s daughter feels that the £875 per week fees demanded by the Local Authority are high. She also realises that the calculations as to what must be paid are made by the Local Authority and that the more she pays then logically the less is paid by the LA. She resolves to ask the LA to provide details of how they have arrived at the figure of £875 per week. “Are you appointed as an attorney for your Mother under a Health & Welfare LPA Mrs Smith?” Err no … “Ah well I’m afraid that under the Data Protection Act we are unable to provide private information about your Mother”.
A Lasting Power of Attorney can only be created by the donor at a time when they have full mental capacity.
Once mental capacity is lost, the only remedies that remain are costly and time consuming and involve either applying to the Court for decisions to be made, or else somebody making a formal application to be appointed as a Deputy of the Court to act in the person’s affairs. A Deputy appointment requires a court hearing, the authority of the Deputy is often restricted (maximum cheque say £500), the Deputy is required to provide detailed accounts, the Deputy is required to undergo formal annual supervision and pay the Court for providing this. Many relatives who embark down this road give up part way through the process.
A far better, cheaper and more effective option is to take out a Lasting Power of Attorney. They can literally save you tens of thousand of pounds and significantly reduce your stress load. It’s worth chatting through with us.
There are many reasons why a person in your life may no longer be able to manage their own financial affairs or make informed decisions about their personal welfare. This is known as loss of mental capacity. Illnesses can be a common factor, such as Alzheimer’s, Parkinsons and dementia.
In order to take control of your loved one or family member’s affairs you may need to apply to become a Deputy if there is not a Lasting Power of Attorney in place. A Deputy is responsible for the vulnerable person’s decisions about issues like property and finance, and occasionally healthcare. Deputyship is usually given to a close family member or friend or to a professional and must be applied for through the Court of Protection.
Our Partners Premier Solicitors are a Lexcel Accredited law firm. This is a nationally recognised quality mark for law firms. They are committed to providing appropriate solutions and excellent customer service at low fixed costs.
They have an Office of the Public Guardian / Court of Protection appointed “Panel Deputy”, one of only 68 Solicitors in England & Wales appointed by the OPG / CoP, because of their specialist skills in looking after the affairs of mentally incapacitated persons, and also have a specialist Court of Protection team who deal with a wide range of Court of Protection matters including any complex applications and disputed appointments. Whatever the circumstances, they are there to help.
The Court of Protection is a specialist Court who makes decisions on applications which involve people who lack mental capacity who are especially vulnerable and are unable to make decisions themselves, such as appointing a Deputy. The Court of Protection will always make decisions in the best interests of the individual.
When a friend or loved one has lost their ability to manage their own financial affairs (often referred to as the loss of mental capacity), the Court of Protection appoints someone to do this on their behalf. This person is known as a Deputy and is given the legal authority to manage the day to day financial affairs of the person who has lost mental capacity.
It is important to remember that someone may be able to make decisions about everyday issues like what to eat or what to watch on television, but can lack the mental capacity to make decisions on more complex issues, like management of their finances.
Anyone over the age of 18 can apply to act as a Deputy. Usually a relative will be the most suitable person to apply, but it is the Court of Protection who has the final say in who can act.
In some cases it may not be suitable for a relative to act and the Court will appoint an approved Deputy (a “Panel Deputy”) to act.
We understand that managing a loved one’s affairs can be a daunting responsibility. If you feel that you cannot undertake this task, you may choose to appoint a solicitor to step in as Deputy and act in their professional capacity.
Our Partners Premier Solicitors not only has a dedicated and experienced Court of Protection Team, but is also home to one of only 68 Court approved Panel Deputies. You can be assured that they are the gold standard for managing someone’s affairs and ensue that any decision will be in the incapacitated persons’ best interests.
A Deputy is responsible for taking on the responsibilities of another person and it is important that a Deputy considers this carefully before making an application.
Our Partners Premier Solicitors would recommend that at least two persons should apply to become Deputy to help ease the burden of responsibility.
A Deputy must comply with the Court Order and should always act in the best interests of the incapacitated person.
The Deputy is responsible for the finances and bills of the person they are acting for.
The Deputy will usually have to submit an annual account to the Office of the Public Guardian.
Yes, there are 2 types of Deputyship Orders that the Court of Protection can make:
Property and Financial Affairs – these are the most common of Deputyship Order and allow a Deputy to manage a person’s property and finances. This includes gaining access to bank accounts, shares and property.
Health and Welfare – The Court of Protection will usually only grant this Order in certain situations such as to decide a specific matter.
A Deputyship application starts from £950 + VAT in line with the Court of Protection scale of fixed costs.
There are some disbursements, primarily a £400 court fee, but these will be clearly set out for you prior to the start of the application process.
The fees are billed at the end of the application process and the Court allows payment to be made out of the funds of the incapacitated person as the Order is made on their behalf. Therefore you will not be expected to pay any upfront costs other than the disbursements as mentioned above.
The OPG or Office of the Public Guardian are the supervising body for Deputies, providing support to Deputies and safeguarding vulnerable adults. They ensure that the Deputies carry out the duties correctly and are able to assist Deputies with any queries they may have.
A Deputy may apply to the Court of Protection to make a Will or a make a gift on behalf of the incapacitated person. This is known as a Statutory Will and Statutory Gift.
An individual’s Will may be out of date or you may be worried that someone may benefit when it would be unfair for them to do so.