By Sarah McDermott, Private Client Paralegal
Lasting Powers of Attorney are documents that you complete while you have the mental capacity to appoint people, who you trust, to be your attorneys, in relation to your financial affairs and/or health and welfare decisions.
The process involves the completion of the Lasting Power of Attorney forms, and they need to be signed in a specific order, first by the donor (the person making the Lasting Powers of Attorney), then by a certificate provider, and finally by the attorneys and replacement attorneys (if there are any).
A certificate provider is someone who confirms that you have the mental capacity to make Lasting Powers of Attorney, that you understand the power that you are giving to your attorneys, and that you are not under any undue pressure to make them.
Once the documents are signed, before they can be used, they will need to be registered with the Office of the Public Guardian. The Office of the Public Guardian is the governing body of Lasting Powers of Attorney and they act as a safeguard, in case the power is misused by your attorneys.
Once the Lasting Powers of Attorney are registered, in most cases they are ready to be used, and you have the flexibility of when to activate them.
Financial Lasting Powers of Attorney can be used if you become physically frail, but still have mental capacity, and they can continue to be used once you lose mental capacity.
Having Lasting Powers of Attorney in place, should the worst happen, means that you have the peace of mind knowing that there is someone you trust to make decisions on your behalf, and the process is a lot less involved than making a Deputyship application to the Court of Protection.
A Court of Protection Deputyship can be applied for by one or more of your family members, friends or the Local Authority. They would apply in order to be able to deal with your financial affairs or your health and welfare, because you no longer have the mental capacity to make decisions for yourself.
This is a much more involved process, with several forms needing to be completed, along with a mental capacity assessment completed by your GP or other medical practitioner.
The sort of information needed to complete the various forms will depend on what the Court is being asked to decide. However, generally, they will need details of the person who is to be appointed as Deputy and the personal details and circumstances of the person who lacks capacity, along with their financial information.
The forms are then sent to the Court of Protection, for them to consider the application and to make an Order. The application needs to persuade them that an Order is necessary.
There are various people who must be informed that a Deputyship is being applied for. These people are generally other family members, any social worker involved, and anyone else who has an interest in the person’s welfare. These people can then let the Court know their views, if they feel it necessary.
With a financial Deputyship Order, the proposed Deputy will need to put in place a surety bond before the Court of Protection will release the Order. The amount of the surety bond will depend upon the value of the assets involved and the relationship between the Deputy and the person whose affairs they are to manage. This acts as a safeguard in case the Deputy misuses the funds, and it involves an annual renewal premium.
Once the Deputyship Order is in place, a financial Deputy is required to complete yearly accounts and submit them to the Court of Protection.
Generally, a Deputyship Order leads to a similar outcome as a Lasting Power of Attorney, in that they both result in someone managing your affairs. However, with a Deputyship Order, you do not get to choose who makes financial or health and welfare decisions about you, or how they make those decisions, the process takes a lot longer, and it is more costly than making Lasting Powers of Attorney.
At Onions & Davies, our Private Client Team would always advise you to make Lasting Powers of Attorney. To speak with someone about this, please contact Sarah McDermott on 01630 417092 or sarah@onionsanddavies.co.uk