Many people know what a Lasting Power of Attorney (LPA) is due to recent media coverage encouraging people to put these in place. But what happens if you don’t have the mental capacity to prepare the LPA? Sereena Clark, paralegal in our wills trusts & probate team, looks how the Court of Protection can help.
We will go through the Court of Protection for property and financial affairs only, as obtaining an Order to appoint a Deputy for health and welfare is trickier and sometimes not successful.
When the Court of Protection steps in
A lack of mental capacity can happen to anyone for a variety of reasons, but what do you do if they don’t have a Lasting Power of Attorney in place for their financial affairs?
The Court of Protection exists to protect the rights, finances, and welfare of people who cannot make their own decisions because of conditions such as dementia, brain injury, learning disabilities, or mental illness.
The person who has lost mental capacity becomes a Protected Party, known as ‘P’ and the person or persons who wish to look after P’s finances are known as Deputy/Deputies.
Becoming a Deputy
Unlike LPAs, the application to become a Deputy can be very time consuming. Every application starts with a mental capacity assessment of P to confirm it is lacking before the process begins.
The proposed Deputy needs to declare that they understand that they will act in P’s best interests and protect P and their assets.
The Deputy will handle P’s financial affairs as though they are P. They will assist with paying bills, daily banking, investments, selling property, paying care fees etc.
What if P has no one that is willing or able to take on the responsibility of being their Deputy? A professional Deputy can be appointed to manage P’s financial affairs – this can be a solicitor or the local authority.
All reasonable costs incurred in applying to become a Deputy will be borne by P once the Order is granted.
How we can help
At Harrison Drury, we act as a professional Deputy for many individuals and have assisted many families apply for Deputyship Orders for themselves to act.
Although it is a good idea to have an LPA in place while you have the mental capacity to do so and can appoint an attorney, a Deputyship Order through the Court of Protection is there if you don’t.
We all have busy lives, or an injury or sudden illness can take us by surprise, which makes putting LPAs in place no longer an option.
If you need guidance on applying to the Court of Protection or appointing a Deputy, contact our wills, trusts & probate team on 01772 258 321.