When someone has lost mental capacity and a Lasting Power of Attorney has not been executed, nobody will have the power to deal with their finances or make decisions regarding their health and care. In this case, a Deputyship application would be made. Deputyships are arranged through the Court of Protection and the Court will appoint a Deputy to manage your affairs.
This is a more costly application; the current initial court fee is £385 plus an administration fee of £100 and other annual costs that are applied. The Deputy appointed by the Court may not be the person you would have wished to look after your affairs.
The length of time it takes to obtain a Deputyship Order can vary but it is typically six to nine months or more.
This is after many specific forms are completed and submitted including an initial medical assessment, these can be difficult to obtain and the professional making the assessment typically charges up to £300.
Quite often, where a Deputyship application is required, the family of the person who has lost capacity find themselves in great difficulty in settling the person’s expenses, such as care home fees during the lengthy application process.
This can be avoided by completing a Lasting Power of Attorney whilst you still have mental capacity.
You choose and name who you would wish to be your Attorney/Attorneys. If you appoint more than one, you can say that they must act together or act independently. You can also name replacements to step in if necessary.
All parties, that is you (the Donor), the Attorney(s) and a Certificate Provider (someone who verifies that you have capacity and there is no one forcing you to do it), have to sign the forms allowing the Attorney(s) to act having regard to the principles of The Mental Capacity Act 2005 which are essentially to always act in the Donor’s best interests.
Once all parties have signed, the document has to be registered with the Office of The Public Guardian to make it valid. The Registration process is currently taking about 12 weeks.
The current registration fee is £82 per document (compare this to the £385 and other Deputyship fees).
LPAs can be cancelled at any time so long as you have mental capacity.
In short, save your family a lot of potential problems, time and costs by completing an LPA before you lose capacity – be aware that you can also lose mental capacity as a result of a brain injury following an accident so they are not aimed solely at elderly people.
Stephen Ashley
Private Client Department
