If ever you were to lose the capacity to manage your affairs as a result of an illness or accident and have not made a Lasting Power of Attorney (LPA), an application would need to be made to the Court of Protection for a deputy to be appointed.
What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document which allows you (the donor) to appoint someone you trust (the attorney) to make decisions on your behalf, including in circumstances where you lack capacity to do so. There are two types of LPA:
- Property and financial affairs
- Health and welfare
Under a property and financial affairs LPA, your attorneys can make decisions on your behalf such as buying and selling property, opening and closing bank accounts, dealing with your investments, managing your day to day finances, and claiming benefits and pensions. This type of LPA can be used at any time, even if you still have capacity. In those circumstances, it should be used by your attorneys with your consent.
A health and welfare LPA can only be used if you have lost capacity. It enables your attorneys to make decisions about where you should live, your day to day care and to give consent to or refuse medical treatment on your behalf.
You can make one type of LPA and not the other. Ensuring an LPA is in place will mean that decisions can be made quickly by someone you trust if ever you lose capacity.
Who can be appointed as an attorney?
You need to appoint at least one attorney and they must be over 18. If you choose more than one, you will need to decide whether you want your attorneys always to act together (a joint appointment) or whether they can also act separately (a joint and several appointment). A joint and several appointment is the most flexible option. You can also choose to appoint a replacement attorney if your first choice is unable to act for any reason.
What are the attorneys duties?
Your attorney has formal legal duties and must follow the principles set out in the Mental Capacity Act 2005 and the Code of Practice. Your attorney must act in your best interests and take account of your wishes, feelings and beliefs.
You can apply conditions and restrictions on the use of the LPA and can also include guidance as to how you would expect your attorney to act.
What happens if someone loses capacity but has not made an LPA?
An application can be made to the Court of Protection for a deputy to be appointed. Deputyship applications will often be made by relatives or close friends but can also be made by professionals, such as a solicitor. Again, it is possible to appoint property and affairs deputies and health and welfare deputies. However, the first type is much more common as decisions cannot be taken on someone else's behalf about their property and financial affairs without formal authority in the form of an LPA or deputyship.
How is a deputyship application made?
All applications must be accompanied by a medical assessment of capacity. The proposed deputy must complete a set of application forms with details about the person for whom the application is being made. The proposed deputy will also need to provide a set of undertakings to the Court. A court fee is payable.
What are the Deputy's responsibilities?
The Deputyship Order will set out the deputy's powers. The deputy must also follow the principles in the MCA 2005 and the Code of Practice. They will be supervised by the Office of the Public Guardian and will usually be required to complete an annual report, setting out all the key decisions they have made and an account of all income and expenditure.
If you would like to discuss the issues detailed above, please contact Louise Mathias-Williams on 01892 701161.
You can also find out more by reading the following information sheet which also addresses Enduring Powers of Attorney (EPA): LPA - frequently asked questions