Losing mental capacity without having a Lasting Power of Attorney in place
Posted on 22nd June 2020
One of the most common questions I am asked by clients is:- what options are available to me once a loved one has lost their mental capacity and does not have a Lasting Power of Attorney (LPA)? I wish to highlight both why it is important for someone to put a LPA in place and to talk you through the options and process involved when one is not.
Once someone (most often a partner or parent) has lost the capacity to make their own decisions, there could be numerous tricky obstacles to overcome. From a property and financial point of view this could include:-
- Buying and selling property
- Accessing funds in their bank accounts to pay for their care
- Dealing with tax affairs
- Claiming benefits
From a health and welfare point of view, this could include:-
- The type of day-to-day care they should receive
- Where they should live
- The type of medical treatment they receive
- Who they have contact with
If a LPA had already been created by the donor before the requisite capacity is lost, the attorney(s) instructed will be able to now make decisions relating to all of the above issues.
What happens without Lasting Power of Attorney in place?
If a LPA has unfortunately not been put in place by the donor, you as one of the family members may find yourself in a tricky situation whereby nobody is able to make any of the above decisions on their behalf.
As a LPA can only be created by the donor when they have capacity to do so, the only solution available would be to now make an application to the Court of Protection to become what is known as their Deputy.
Process of appointing a Deputy
The process can be summarised using the following steps:-
- Firstly, you will need to decide who the most appropriate person(s) to act as a Deputy might be. More often than not this will be family members who know the person best, however if there is no obvious choice or if the family cannot agree, then a Solicitor can be appointed in their professional capacity.
- The applicant then prepares the necessary Court of Protection application forms asking the Court to make an order appointing them as the Deputy. One of the requirements is to include a capacity assessment (carried out by a medical practitioner) which confirms that the person is no longer able to make their own decisions. Whilst it is normal practice for such a capacity assessment to take place face to face, medical practitioners who carry out this service are having to think of creative ways to get around this with the current Covid-19 restrictions in place. Virtual assessments using programs such as Zoom and Skype are now becoming the new norm.
- Once the Court have issued the paperwork, the applicant must now notify everyone who is an interested party. This is where other family members may choose to voice their concerns or contest the application.
- Assuming no objections are made, the Court will then consider the application and make the Order if deemed appropriate. The new Deputy will at this point have to pay a small fee for a Deputy Bond (similar to an insurance policy) to protect the incapacitated from the Deputy using their funds dishonestly.
The above process can take anywhere between 6 and 18 months to conclude.
What are benefits of a Lasting Power of Attorney over a Deputyship
Not only is the actual process of putting a LPA in place vastly quicker than a Deputyship application, but an LPA allows the attorney to use it as soon as the donor loses capacity. If you are forced to apply for a Deputyship after a loved one has lost capacity, there could be a stagnant period of up to 18 months where you are not able to make any decisions on their behalf.
In addition to the above, a Deputyship requires the Deputy to keep detailed accounts and have an ongoing duty to report all spending and decisions made to the Office of the Public Guardian on an annual basis. This duty is not required if acting as an attorney under a LPA.
Lastly, the cost of registering each LPA is currently £82 whereas the cost of a Deputyship application is £365. If instructing a Solicitor, the average cost of putting LPAs in place is significantly lower than what would be charged for assistance with a Deputyship application.
With many cases I come across, families have not even contemplated putting LPAs in place until they see first-hand the difficulties faced when a family member without one loses capacity. I explain to my clients that LPAs are like insurance documents, you pay a small premium, take them out, put them in a drawer and forget about them. However you are then safe in the knowledge that should you ever lose capacity in the future, you affairs will then be taken care of by the people you care about and trust most.