Lasting Powers of Attorney (LPA's) & Deputyship Orders
In an ideal world, we would all remain healthy and independent until the day we died. Unfortunately, that is not always the case: illness, whether physical or mental can hit any one of us and we may not be always be able to make decisions for ourselves.
By organising your affairs now, when you are fit and healthy you can ensure that the people who care about you are able to make decisions as and when it is necessary.
If we lose mental capacity and later need someone to make decisions on our behalf, then someone not necessarily a family member, will need to apply to the Court of Protection to become a deputy.
What are your options?
In October 2007, Lasting Powers of Attorney were introduced, replacing the Enduring Power of Attorney (EPA). Existing EPA’s may continue to be used (whether registered or not). They only allow attorney’s to make decisions about a persons finances or property. EPA’s can no longer be created.
A Lasting Power of Attorney (LPA) is an important document that allows you to choose trusted relatives or friends to make financial and/ or health decisions on your behalf if you are unable to do so. It can only be created when you (known as the donor) still have mental capacity.
There are two types of LPA; one that allows your attorneys to make financial decisions for you (Property and Affairs) and the other which allows the attorneys to make ecisions about where you should live, the type of care you need and medical treatments etc. (Health and Care Decisions).
A Property & Affairs LPA covers:
- How your finances and property are managed
- How your bills would be paid if you were unable to do this i.e. physically incapacitated or out of the country for long periods of time
- How your assets would be dealt with i.e. selling your house
A Health and Care LPA covers aspects such as:
- Giving or refusing consent to particular types of health care, including medical treatment decision
- Deciding whether you continue to live in your own home or whether residential care would be more suitable for you.
An LPA must be arranged whilst you still have mental capacity to decide who you want your attorneys to be. If you no longer have the capacity to make this decision, your friends or relatives will have to apply to the Court of Protection for a Deputyship Order.
An LPA must be certified and then registered with the Court of Protection before it can be used. You can continue to handle your own financial affairs if you wish, even after an LPA has been signed. However, with a Health and Care LPA, decisions can only be made on your behalf when you no longer have capacity.
Increasingly, many families come to us when their loved one has lost ‘mental capacity’ and are therefore unable to draw up an LPA. When this happens, the family have to apply to the Court of Protection for a Deputyship Order.
The Court of Protection appoints a Deputy whose role is to manage the financial affairs including the property sale for the person who lacks the mental capacity to make those decisions themselves. Unfortunately, the application process is complex, lengthy and very expensive.
In addition, the Deputy has to maintain annual accounts and pay an annual insurance ‘bond’ to the Court.
If there is no one suitable to manage your affairs, or when a family is in dispute about who is the most appropriate member to act as an Attorney or Deputy, a professional may be appointed. CM Estate Planners have the necessary experience to act in this role.