It seems that many families remain uncomfortable talking about plans for later life and as a nation, we are failing to talk about what our wishes, should we lose the ability to make our own decisions. Research from The Solicitors for the Elderly whitepaper in 2018 ‘The incapacity crisis – a nation unprepared’ reported that only 3% of those polled had a health and welfare lasting power of attorney in place.
So, what happens if you lose capacity, either through illness or an accident and you do not have a Lasting Power of Attorney in place? What options will your family have?
Court of Protection
When an individual does not have a Lasting Power of Attorney, if they lost capacity, the only option to them and their families would be to apply to the Court of Protection for a Deputyship Order.
What is a Deputy?
A Deputy is an induvial appointed by the Court to handle a person’s (P’s) financial affairs and property or their personal welfare. This only happens once P has lost capacity.
What is the application process?
The most common type of application is a Deputyship for property and finances. Although you can apply to be a personal welfare Deputy, the Court will only grant these in circumstances where many best interest decisions cannot be made due to disagreements between family members/doctors/care homes. The Court will also help solve any specific welfare matters.
The application process can be a long one, which is why LPAs are so important to have. When a person loses capacity and they have a registered LPA, the Attorney can use the LPA immediately. Where there is not an LPA, a potential Deputy needs to apply to the Court of Protection, which can take over 6 months. During this time, the bank may have frozen savings accounts, meaning there are no funds for care or day to day living. Kate Garraway recently spoke out about the financial difficulties she is faced when her husband, Derek Draper, fell into a Covid-19 related coma, demonstrating the importance of Lasting Powers of Attorney and a timely reminder that they are not just for later life!
The application requires specific Court forms to be completed which provide details of finances along with details of the proposed Deputy. It is always advisable to seek legal advice on these applications, as if there are any errors or if certain information is missed out, the application will take longer to process.
What are the differences between a Deputyship and an LPA?
- Timing – As seen above a Deputyships application can take 6 months or more. An LPA takes 6-8 weeks to register. The Deputy is only appointed after P loses capacity. Attorneys under LPAs are appointed when the Donor has capacity.
- Choice – LPAs give the donor a choice of who they want their Attorneys to be. A Court appoints a Deputy under a Deputyship Order.
- Cost – although LPAs may appear expensive at first. It is a one-off payment. With a Deputyship application you will need to pay the Court application fee of £365.00, plus any Solicitor’s fees. Each year the Deputy will also need to pay an OPG supervision fee and a Surety Bond. A Surety Bond is paid each year so that if a Deputy abuses their power, money can be claimed back.
- Supervision – Deputyships must account for all money and explain their decisions each year by reporting to the OPG. This prevents any fraud from the Deputy. LPAs do not have this, the only way the OPG will know if the LPA is being abused, is if it is reported by someone who has concerns.
It is always worth considering the preparation of a LPA to save your family having to go through a lengthy Court application and to have the power to choose your own Attorneys, but If you would like to apply to the Court of Protection for a Deputyship Order, or you have further questions please contact our dedicated Wills, Trusts and Probate team on 01603 598000 or by emailing firstname.lastname@example.org and they will be happy to assist.
*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.