LASTING POWERS OF ATTORNEY / DEPUTYSHIP / COURT OF PROTECTION
LASTING POWERS OF ATTORNEY
Lasting Powers of Attorneys were introduced in October 2007. A Lasting Power of Attorney is a legal document under which a person is able to choose one or more people who they would wish to deal with their affairs in the future if they are no longer capable of doing so. Lasting Powers of Attorney are available in respect of both financial issues (Property & Financial Affairs) and in respect of care issues (Health & Welfare). A Lasting Power of Attorney allows a person to choose those they trust the most to act on their behalf in the future, if necessary. Having a Lasting Power of Attorney in place can lessen costs and stress if a person later loses their capacity.
Case history:
Mike Molloy did not have a Lasting Power of Attorney. He had a severe stroke that left him unable to speak or write, as well as very confused. His niece, Marie, who lived on his road and had been his closest friend for years, could not manage his affairs. Instead, his long estranged daughter Susan in Australia had the sole right to manage his affairs as the next of kin. A deputyship order was required and the initial costs were well over £1,000, with further costs each year. Susan would not let Marie have any say in his affairs, so Marie could not inspect Mr Molloy’s bank statements once they were sent to Australia. Marie did not know that Mr Molloy was handing big cheques to traders who came to the door pretending to have fixed the roof or work on the garden. Susan did not discover this, because she did not look at the bank statements.
Marie was the sole beneficiary under the Will, but there was little left when her uncle died, after all the deputyship costs and the fraudulent traders.
A Lasting Power of Attorney naming Marie as the attorney could have ensured that Mr Molloy’s affairs were properly managed, he faced less costs, and he still had some assets when he died.
DEPUTYSHIP/COURT OF PROTECTION
If a person is unable to choose who they wish to act on their behalf it will be necessary to make an application to the Court of Protection for a Deputy to be appointed.
This might arise because of sudden incapacity in older years or because a child becomes incapacitated through injury at birth or an accident.
Not only can we assist a Deputy with this initial application but we can also advise on possible hearings in the future and annual duties for a Deputy including the drafting of financial reports which is a requirement of the Court of Protection.
As a general rule, a Deputyship involves more initial costs than a Lasting Power of Attorney, as well as ongoing costs. The person who is incapacitated cannot choose their Deputy. Sometimes, a complete stranger is the Deputy, perhaps a solicitor appointed by the Court.
Where a Lasting Power of Attorney is still possible, this is generally preferable, unless there are issues in the family. A Lasting Power of Attorney involves less costs and less delays, and the Donor can choose their Attorney. Further the assets remain with the Attorney, rather than being transferred in part to the Court of Protection, as can happen with a Deputyship.
We also advise on issues arising with the Court of Protection, or challenges to a Deputy, or the ending of a Deputyship.
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