What do I do if a Lasting Power of Attorney is no longer an option?
It is well known that we, as human beings, live far longer than we ever did before. Advances in medical treatments, better lifestyle choices, accessibility to better food and safer working environments all mean that the majority of people live to be elderly before they pass away.
According to Alzheimers Society age is the strongest known risk factor for developing dementia. When a person is under 65, they have a 1 in 20 chance of developing dementia; however when a person is over 65, the risk doubles every 5 years and dementia affects 1 in 14 people over 65 and 1 in 6 people over the age of 80.
It is estimated that 850,000 people are living with dementia in the UK, and this means increased vulnerability, and an increased need to protect that person and ensure that provisions are made for someone else to make decisions on their behalf, if they are unable to. Dementia is not the sole reason why someone might lack the ability to make decisions for themselves, however it is the most relatable, and this article explores the options available to appoint another person to manage your finances or health decisions.
Lasting Powers of Attorney
A Lasting Power of Attorney is a legal document which allows the donor (the person making the document) to appoint an attorney or a number of attorneys (the person or people appointed to make the decisions on behalf of the donor) to make decisions relating to either:
1. Property and Finances; or
2. Health and Welfare
The documents are governed by the Mental Capacity Act 2005 which sets out the framework for decision making for individuals who are no longer able to make decisions for themselves
There is a Code of Practice which attorneys should have regard to, and the documents can only be drawn up by an individual who has the mental capacity to do so.
It is important to bear in mind that these documents should be considered at an early stage of life, as asides from the increased risk of dementia as a person gets older, there is also the risk of injury, having surgery or being involved in an accident which means a person is suddenly unable to make their own decisions.
What are the options if someone no longer has mental capacity?
If an individual does not have a Lasting Power of Attorney in place, the alternative is to apply to the Court of Protection for a Deputyship Order. The key differences are:
a. The Deputy (the person appointed to make decisions) applies for the Order to be made, on behalf of the person who lacks capacity.
b. Deputies are monitored far more closely than attorneys.
c. A Deputy must produce an annual report and accounts, which is not the case for an Attorney.
d. A Deputy must put a security bond in place to protect any loss to the person’s assets as a result of the Deputy’s actions, which is not the case for an Attorney.
e. The application is far more lengthy and involved.
f. The application always requires a mental capacity assessment. This may or may not be the case when applying for a Lasting Power of Attorney.
g. There are substantial costs involved in applying for a Deputyship Order, in comparison with a Lasting Power of Attorney.
h. The person who lacks capacity loses control over who is appointed, as the Court will decide whether the person who is applying is suitable to act as a Deputy. Someone the person would not have chosen may be appointed, such as a Local Authority or Solicitor.
i. A Lasting Power of Attorney typically takes 12-16 weeks to register; and a Deputyship Order takes 4-6 months, which means there may be no access to bank accounts in the interim.
Arguably, an individual is safeguarded by a Deputyship Order whereas Lasting Powers of Attorney are subject to abuse, especially since nobody has to be notified an application is being made.
What should I do next if I need help?
At Keyte Legal, we can assist with both Lasting Power of Attorney and Deputyship Order applications. To find out more, contact us today
The blog postings on this site are accurate at the time that they are written and do not constitute legal advice. All comments are made in good faith, and neither Keyte Legal Limited nor the author will accept liability for them. Please contact us for more information or advice