What happens if you or a loved one is suddenly unable to make important life decisions?
It could happen to anyone, at any time. A health condition or an accident can lead to a situation where someone no longer has mental capacity to manage their financial affairs, make decisions about their welfare, or perhaps both.
Planning ahead with a Lasting Power of Attorney
Putting an LPA in place to plan for this happening is a sensible step to take. This allows the representative(s) – the Attorney(s) – to step in and manage the situation. For this to be valid, a person must be able to understand the effect of making an LPA. Confirmation of this is dealt with in the power by a ‘certificate provider’ confirming that this is the case.
You can choose to appoint one or more Attorneys and specify whether they must act together (if more than one) or can act independently of each other. Replacement Attorneys can be named, if the originally appointed people find that they cannot act for you.
There are now over 3.1 million registered LPAs and this form of preparedness is increasingly popular – the rate of applications to register LPAs in the UK is currently in excess of 3,000 per day.
What happens if there’s no plan in place?
Where there are doubts over a person’s capacity and they do not have an LPA (or perhaps an older Enduring Power of Attorney) in place ready for use, it may be necessary for a Deputy to be appointed.
The initial difference is that the person has lost the capacity to make a valid LPA. Their opinion should still be taken into account when choosing who should apply to be appointed as Deputy for them.
Deputies are appointed by the Court of Protection. A detailed application to the Court will be needed, and there is an established process to follow. The costs of the application can be recovered from the person’s estate, once an appointment is made.
The Court’s standard turnaround time from application to appointment is 26 weeks. In practice however this can be longer or shorter, depending on the complexity of the application and the workload of the Court.
It is important to note also that the Court can request further information, and that their procedures in respect of notification of the application must be carefully followed. Failure to do so will inevitably result in delays to an appointment being obtained.
Dan Snedden is head of Berwins' Court of Protection unit and supports the representatives of individuals who are no longer able to manage their own personal and financial affairs.