It is clear that the world’s ageing population is increasing and this is largely due to the advancement of medicine and better standards of living for many across the globe. Sadly however medicine for the mind is not as advanced as medicine for the body and therefore the world faces a situation whereby more and more persons will be physically able but mentally incapacitated.
Before a person loses capacity it is sensible for that person (the Donor) to grant Lasting Power of Attorney to a trusted family member or close friend. Lasting Power of Attorney (LPA) is a very useful safety net whereby the donor grants the attorney with the power to make decisions in their best interests. Once the LPA is registered with the Office of The Public Guardian this permits the attorney to make decisions in respect of the Donor’s health, welfare and/or property and finances. It is important to understand that by granting power of attorney the donors are not giving up an ability to be able to make decisions for themselves, they are effectively getting prepared for a time when they may lose capacity; in effect when the donor loses capacity the attorney can “step into the donor’s shoes” and act in their best interests. It may be that the donor would like the attorney to exercise some power whilst the donor still has capacity but the point is that whilst the donor has capacity it is their decision, they can even revoke the LPA at a later time if they so wish, providing they have the capacity to do so.
Sadly, it is very common that people only consider getting an LPA in place after the donor has lost capacity. This is too late. Lasting Power of Attorney cannot be obtained once the donor loses capacity, at this stage it would be necessary to apply for deputyship to the Court of Protection and this is a far more complex, time consuming and very costly process.
If an application for deputyship is made, the Court of Protection will consider appointing a deputy in order to administer the “Patient’s” finances, provide authority to sell property, or determine a substantive issue in respect of the patient’s Health & Welfare.
Dealing with the Court of Protection can be a very costly process, the deputyship application alone to the Court is £400 and it is also a pre-requisite to obtain a medical certificate by an appropriate expert to evidence to the court that the patient has in fact lost capacity. In Health & Welfare cases it is first necessary to submit an application for leave to apply for deputyship (permission to apply) and a further £400 court fee is applicable. The most expensive of cases are those which require a hearing and a hearing will be necessary when there is a dispute, usually between family and friends as to who the deputy should be or if there is a suitability issue in respect of the applicant deputy (a further £500 Court fee is applicable should a hearing be required).
Deputies are usually family members or close friends, but where appropriate the Court will appoint one of its panelled Solicitors as deputy. The Court of Protection has very strict safeguarding mechanisms in place and has the power to monitor and regulate deputies as it sees fit. Although The Court of Protection carries out an extremely valuable role in our society it has been subjected to a great deal of criticism in the press in recent years, largely due to its opaque and secretive nature.
Due to our ageing population it seems likely that the Court of Protection will become more and more involved in many cases, which is why it is absolutely paramount that you take action now and ensure Lasting Power of Attorney is in place for you or your loved ones therefore preventing the Court of Protection`s involvement.
If you require advice on Lasting Power of Attorney or the Court of Protection process then contact our expert team, who will be able to assist and advise you.
