What happens if I do not have Lasting Powers of Attorney in place?
First, what are Lasting Powers of Attorney?
Lasting Powers of Attorney appoint someone (often a relative or close friend) to act on your behalf in the situation where you are unable to do so for yourself owing to either physical or mental incapacity. The person appointed is called an “attorney”.
Lasting Powers of Attorney are not just advisable for the elderly but for all of us. What happens if you lose capacity and you do not have Lasting Powers of Attorney in place? What is the default position and who makes those important decisions on your behalf?
What is a “deputy”?
In the absence of a Lasting Power of Attorney (or its predecessor known as an Enduring Power of Attorney), no-one has the right to take decisions for that person who has become mentally incapable of managing their affairs until a “deputy” is appointed by the Court of Protection.
As with Lasting Powers of Attorney, there are two types of Deputyship Orders:
- Property and Financial Affairs, which are used, for example, to pay bills, dealing with banking affairs and selling property; and
- Health and Welfare, which are used, for example, to take decisions about care and medical treatment.
Who becomes a deputy and how?
Anyone (although usually family members or professional advisors) who satisfy certain eligibility criteria and who want to take on the responsibility of a deputy must apply to the Court of Protection. If no-one comes forward, the Court of Protection will appoint a third party professional.
So why do we need to appoint attorneys if deputies are appointed in default?
- You choose your attorney – You ensure that a person you trust has the authority to act as an attorney, rather than an unknown third party or someone you would not want to be appointed as your deputy.
- Consideration for those wanting to care for you – At what may be a difficult time for you and your closest friends and family, you alleviate any arguments about who should act and when they should act. You also minimise the stress for those who want to care for you if they do not need to apply (and possibly argue) to become your deputy.
- Peace of mind – As well as leaving written instructions, you can talk to your attorney in advance of losing capacity about how you would like them to act on your behalf and how you would expect them to take decisions in different scenarios. This personal touch can be more comforting for all involved.
- Costs for you and the burden for those caring for you – The application process to become a deputy is more time consuming, exacting and expensive for you than the application process to appoint an attorney. It is estimated that the cost of applying to become a deputy could be as much as £5,000.00 payable from your estate. The cost of putting in place LPAs is much less than this. The ongoing administrative burden and safeguarding requirements on deputies is also greater and more cumbersome than for attorneys.
The Office of the Public Guardian supervises and investigates deputies and attorneys and its website contains much helpful information. Catchpole Law is also very happy to have a “no obligation” conversation about how to put Lasting Powers of Attorney in place and what to do if you want to apply to become someone’s deputy. We will be able to give you an estimate of the costs involved as well.