Recognising changes to the memory or behaviour of our loved ones can be deeply upsetting and destabilising, whether these changes have happened rapidly or have started to appear incrementally. The realisation these changes may be signs of dementia or Alzheimer’s disease can be painful to process and in turn, this can make it hard to broach the subject with the person you are concerned about, for fear of upsetting them.
Lasting Powers of Attorney (LPAs) are the mechanism by which a person, ‘the donor’, can select attorneys to make decisions on their behalf should they ever become unable to make decisions themselves.
There are two types of LPA, one relating to financial decisions and the other to health and care decisions.
Once executed by all parties the document is registered with the Office of the Public Guardian. If the donor subsequently loses capacity the attorneys can use the LPAs to manage the donor’s finances and to make decisions about their health and care.
Despite increased awareness of LPAs, the number of people who actually have them is still relatively low. According to a survey carried out by Canada Life in May 2022, only one out of five adults in England and Wales had an LPA in place.
Often the reasons why people haven’t put them in place is because they just don’t want to think about losing mental capacity, a belief that ‘it won’t happen to me’ or it just seems like too much of an effort to deal with. If that person then starts showing signs of mental deterioration, it may fall to their family or friends to broach the difficult conversation about the practicalities of what will happen if they become unable to make decisions for themselves. The person showing the signs might be sensitive about, or resistant to, putting in place the arrangements. They may be agitated and completely reluctant to acknowledge the conversation to be had.
This can lead to a very problematic and challenging set of circumstances because once someone lacks mental capacity and cannot make decisions for themselves, they will no longer be able to make an LPA. In turn, this can force loved ones into a situation where they need to apply to the Court of Protection to be appointed as a deputy.
You can apply to be a property and financial affairs deputy and/or a personal welfare deputy, the latter of which will enable you to make decisions about medical treatment and how someone is looked after. However, the court will usually only appoint a personal welfare deputy if there is doubt about whether a decision will be made in someone’s best interests, such as in circumstances where there is family disagreement over someone’s care, or if someone needs to be appointed to make decisions regarding a specific issue that arises.
Whilst personal welfare deputies are usually family members or friends, to be appointed a property and financial affairs deputy you will need to have the necessary skills to make financial decisions on someone else’s behalf. Therefore, families often turn to professionals – such as accountants or solicitors – to act as deputies on their behalf and the court can even appoint a specialist deputy from a list of approved law firms if there is no one else available
Not only are the application fees to become a deputy more expensive than the fees to register LPAs, but detailed and considered information is required for the application which can take a lot of time to collate and can be very costly in terms of professional fees.
It is not unusual for it to take months for the court to grant the deputyship order after the application has been submitted. This has serious practical implications as you will not have the authority to act on someone’s behalf during the intervening period.
While a personal welfare deputy will be able to start acting on someone’s behalf straight away, a property and financial affairs deputy may be asked by the court to set up a security bond, which is a type of insurance that protects the finances of the person for whom you are acting as deputy and can add to the time and costs involved.
It can be seen, therefore, that it pays to be prepared and appoint your choice of attorneys under an LPA while you are still able to do so. Otherwise, the anguish, time, costs, and uncertainty that can arise from a deputyship application will be borne by loved ones during what will already be a daunting and difficult time.
If you know someone who you fear is showing early signs of mental deterioration and they do not have an LPA in place, don’t put off that difficult conversation, or else it may become too late.
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