With the ongoing publicity surrounding the pop singer Britney Spears and her court battle with her father over the handling of her financial affairs, concern has been expressed at what can happen when someone is deemed to be mentally incapable of dealing with their own affairs.
Clearly, the law and the measures available in America are different to the UK, but there are documents and processes available here which can ensure that your future is protected in the event of loss of mental capacity.
Topics to be answered in this article
Lasting Powers of Attorney
Everyone over the age of eighteen should consider making an LPA – even if it is never needed it provides peace of mind and ensures that someone you trust can act on your behalf if needed. The term ‘next of kin’ is often used but few people realise that a relative does not automatically have legal authority to assist you – you will need to have made and registered an LPA with the Office of the Public Guardian for this to be able to happen.
The person(s) you choose to act for you if needed are known as your Attorneys and you can appoint as many as you wish. However, you need to consider who to appoint carefully and whether or not there are any restrictions on their authority.
With the Property and Financial Affairs LPA, all the while you retain mental capacity you remain in charge and your Attorney(s) can only act with your consent. However, if you do go on to lose mental capacity this is when they can act for you automatically.
With the Health and Welfare LPA, it can only be used by your Attorneys if you are deemed mentally incapable of making a specific decision regarding your health and welfare (including life-sustaining treatment).
Having LPA’s in place provide a ‘safety net’ for the future and provide you with complete control over who is appointed to make decisions on your behalf. Here at Goughs we can advise you on all aspects of the LPA to ensure it is tailor made for you. We can also act as your Certificate Provider and witness which are roles required within the document and we can provide guidance on the role of the attorney to ensure that your attorneys understand what they are signing up to.
Deputyships
Sadly events can overtake in life and it may be that there is a sudden onset of loss of mental capacity, e.g. medical event/accident etc. In these circumstances a person may have missed the opportunity to make an LPA. If this happens, and property and financial transactions need to be dealt with, then the only way forward is to apply to the Court of Protection for a Deputyship Order.
The standard application process for a Deputyship Order currently takes in excess of six months, during which time no one has the legal authority to deal with property or finances. Anyone interested in the welfare of the person who has lost mental capacity can apply to the Court to be appointed as Deputy but they must first satisfy the Court that they are an appropriate choice. In some instances this might not be a family member – it could be a local authority or a firm of solicitors who act as Deputies for lots of individuals under a Panel Scheme.
The paperwork is lengthy and care must be taken to ensure that the relevant authorities are sought from the Court at the outset to ensure that any Order granted works for the person involved.
The Court of Protection very rarely makes a Deputyship Order in respect of health and welfare decisions. It prefers to restrict any Orders to specific issues rather than issue a blanket authority to deal with all health and welfare matters. This is because many types of health and welfare decisions can often be made after considering what is in the person’s best interests and the Court’s involvement is not necessary. However, those decisions might not be what the person involved might have chosen had they been able to do so themselves.
The cost of a Deputyship can be substantial and in addition to a court fee there are additional costs at the outset and ongoing annual costs. The role of the Deputy is onerous and requires regular reporting back to the Office of the Public Guardian.
Our lawyers can advise on making a Deputyship application and make sure that Deputies fulfil their duties correctly. We can also assist them in completing their annual accounts. If you are looking for advice regarding a Deputyship, contact us today.
