WHAT HAPPENS IF YOU LOSE THE ABILITY TO MANAGE YOUR OWN AFFAIRS?
Many of us worry that as we, or our loved ones get older, illness or mental incapacity may prevent us from managing our own affairs. Planning for this eventuality is possible but it is important to understand that just because you may have named a ‘next of kin’ it does not mean that person will have the legal right to make decisions on your behalf.
Our specialist team can advise on the choices you can exercise now, to ease the future risks of failing mental capacity, such as Lasting Powers of Attorney (LPAs). They are very powerful documents and should be made with a full understanding of what powers you are granting. Care must be taken in getting the documents correct. This is where our expert team can assist.
It is important to remember that LPA’s (and any estate planning) are not just important for the older generation – life is unpredictable. Unfortunately, accidents and illnesses can occur at any age and may affect yours and your loved one’s future. Having your affairs in order can be useful as well as a comfort to those around you should anything untimely happen.
LASTING POWERS OF ATTORNEY (LPA)
This is the legal way for you (‘the Donor’) to give someone else (‘the Attorney(s)’) authority to make decisions about your property and financial affairs and / or health and welfare and in what circumstances.
There are two types of LPA, and you can create either or both:
- A Property and Financial Affairs LPA covers decisions and actions in relation to your bank, investments, paying bills, selling and buying property and generally anything money orientated. This LPA can be used both when you no longer have capacity but also at a time when you may just need some assistance.
- A Health and Welfare LPA covers decisions in relation to where you live, visitors you receive and medical treatment including life sustaining treatment. This LPA can only be used when you no longer have capacity to make your own decisions.
Having an LPA in place provides you with peace of mind and ensures that your affairs are managed by those you trust, and that your wishes are known. However, sometimes events can take over and if no such power has been put in place, then someone will need to apply to the Court of Protection, asking them to appoint and supervise a suitable person to look after your affairs; a person they call a ‘Deputy’.
COURT OF PROTECTION
WHAT IS THE COURT OF PROTECTION?
The Court of Protection (COP) is an English Court with jurisdiction over the affairs of people who are mentally incapable of making decisions for themselves.
If a person does not have Lasting Powers of Attorney in place, and they lose capacity to make their own decisions, then an application is made to the COP for the Court to confirm the person lacks capacity and to give legal authority to the applicant for them to manage the person’s affairs going forward. Once appointed they are called a Deputy. It is important to note that this process can be both time consuming and expensive.
TYPES OF APPLICATION
There are many different reasons why a COP application is needed including:
- To appoint (or remove) a Deputy for property and financial affairs.
- To give permission to sell a person’s property.
- To make a Statutory Will if the person who lacks capacity does not have a Will or if their current Will no longer reflects their wishes.
- To give permission to make gifts on behalf of the person who lacks capacity.
- To remove an incapacitated trustee (including trustees of land – joint owners of houses).
OTHER ADVICE
Our team can advise Attorneys and Deputies about their rights and responsibilities to ensure they are able to fulfil their obligations as set out in the LPA / Court Order and within the law. We are also equipped to assist if there are disputes between Attorneys or within the wider family.
Our Partners are willing to act as Attorneys and Deputies where the circumstances require, such as if there are no family willing and able to act or in complicated family structures. Our specialist team are on hand to assist with all aspects of COP work.
Our team is based in Bury St Edmunds and can assist clients across the country. Please contact us or complete the enquiry form below.