Lasting Powers of Attorney & Court of Protection

At some point in the future, an individual may suffer some form of physical or mental incapacity which prevents them from effectively managing their own affairs. This could be through an accident, illness, mobility difficulties or simply that you would rather have assistance or leave decisions to a trusted family member or friend.

Lasting Powers of Attorney (LPA) allow you to legally appoint someone you trust to make decisions on your behalf.

There are two types of LPA:

• • Property and Financial affairs LPA – gives the attorney authority to make decisions about your financial affairs including utilities, pensions, property and any financially related matter.
  • Health and Welfare LPA –  gives the attorney authority to make decisions about your healthcare and personal welfare. This includes medications, treatment plans and life sustaining treatment but also care home choice, clothes and dietary requirements.

An important distinction between the two types is that a property and financial affairs LPA can be used by the attorney even when you still have mental capacity to make your own decisions, but a health and welfare LPA can only be used once you have lost capacity to make the relevant decisions yourself.

Choosing an attorney is a vital decision, and you need to think carefully about who you give the power to.

LPAs can be made at any time while you have capacity.

Court of Protection (Deputy)

If someone becomes unable to make their own decisions due to a lack of mental capacity and have not created an LPA then an application will need to be made to the Court of Protection for a deputy to be appointed.

There are two types of deputy (although one person could be appointed to both roles) similar to the two types of LPA:

• • Property and Financial affairs Deputy – manages decisions about property and finances. The court will determine any limitations to the deputy’s powers but they may range from dealing with day to day affairs to taking over bank accounts and selling the person’s home (although the Court’s permission will be required to do this). Because of the financial risks involved, no decisions or actions can be made by a property and affairs deputy until a ‘security bond’ – a type of insurance – has been paid.
  • Health and Welfare Deputy –  manages decisions about the care or medical treatment that the person receives.  Decisions can be actioned as soon as the appointment is received. It should be remembered that all actions must be in the person’s best interest and that the deputy will be supervised by the court which often includes visits by Court officers.

In addition, the Court may ask a deputy to provide specific information about a decision they have made or to provide supporting documents about a financial transaction.  The Court may also contact social services or health authorities to request copies of the health and social care records of the person lacking capacity or request copies of care records from registered care homes.

The application is thorough with full disclosure of the persons financial assets and supported by medical evidence. Confirming the full extent of these can take several weeks before an application can be prepared and submitted to the Court, which can involve considerable fees.

At a time when someone loses capacity often there are associated stresses of moving into residential homes and health concerns so we would always encourage our clients to make LPA’s to remove the risk of family members or friends having to go through the Court of Protection ordeal.

Our Experts In This Area

Vicky John

Amy Hook

Emma Huscroft