Acting sooner rather than later is important. It is estimated that by 2015 there will be 850,000 people with dementia in the UK , the cost of which has soared to £26bn a year. Today many of us either know friends or relatives coping with dementia (and other related capacity issues), or are directly experiencing the difficulties brought about by living with the condition. With this in mind, mental capacity and the surrounding law has never been more important and acting sooner rather than later is crucial.
The most straightforward approach to safeguarding a person’s finances, health and welfare is to make Lasting Powers of Attorney (LPAs) whilst that person still has capacity. An LPA is a legal document which allows the person making the LPA (the donor) to appoint someone they trust (the attorney) to make decisions on their behalf if one day they become unable to make those decisions themselves. The attorney is then able to make decisions regarding the donor’s finances, including selling property, running bank accounts, paying tax, and claiming benefits. Other responsibilities include making decisions regarding the donor’s daily health and care needs or consenting to or refusing life sustaining treatment. A Lasting Power of Attorney can also be used in situations whereby the donor is out of the country or in hospital.
To draw up a valid LPA the donor must have capacity at the time of signing. Therefore planning ahead is essential, and gives the donor plenty of time to consider the people they want to appoint and place any restrictions or guidance they may want to make in advance.
Sadly the process is more complicated for those who don’t already have an LPA and subsequently become mentally incapacitated. In this case there is no other option but to make an application to the Court of Protection fora Deputyship order. Unlike LPAs where the donor chooses their attorney in advance, the court will instead appoint an attorney (either a relative or a professional such a solicitor). However, this does depend on on there being someone prepared to take on the duty. A Deputyship application is more costly and heavily administrative. The application itself can take many months to complete and presently the Court advise that it takes six months for an Order to issue. This inevitably creates interim financial issues Once appointed by the Court, Deputy is then required to complete and submit annual returns and to account to the Court.
LPAs are quicker to administer, less expensive, and puts the donor in the driving seat. Whilst the importance of Deputyship orders should by no means condemned, it is often seen as a sledgehammer to crack a nut, compared to the relatively straightforward LPA process. As none of us know what is around the corner having protection in place ‘just in case’, offers peace of mind and certainty for yourself and your family.