Consider these words from the British Banking Association: ‘If you are the joint account holder and the other joint account holder becomes mentally incapable, you do not automatically have the right to access the account unless you have a Lasting Power of Attorney, Enduring Power of Attorney or an Order from the Court of Protection.’
Lasting Powers of Attorney are now considered by most advisors to be a vital tool to assist you as the years progress. There are two kinds of LPA. One is a Financial Affairs LPA, and the other is a Health and Welfare LPA. You can only consider making them if you currently have mental capacity. If you lose mental capacity without them in place, it will be necessary to make an application to the Court of Protection. The application will be for the appointment of a deputy.
With an LPA, you are what is known as the Donor. It is you who makes a decision on who should be your Attorney. The Attorney will be able to make decisions in relation to your property and financial affairs or to make decisions about your personal welfare.
PROPERTY & FINANCE
The Property and Financial Affairs LPA enables the Attorney to be in a position to make decisions in relation to any of your property and financial affairs and these will include the following:
- Buying and selling property
- Closing or operating a Bank, Building Society or other account
- Giving access to your financial information
- Claiming, receiving and using (on your behalf) all benefits, pensions, allowances and rebates – unless the Department for Work & Pensions has already appointed someone and everyone is happy for this to continue
- Receiving any income, inheritance or other entitlement on your behalf
- Dealing with your tax affairs
- Paying your mortgage, rent and household expenses
- Insuring, maintaining and repairing your property
- Investing your savings
- Making limited gifts on your behalf (subject to certain restrictions)
- Paying for private medical care and residential or nursing home fees
- Applying for any entitlement to funding for NHS care, social care or adaptations
- Using your money to buy a vehicle or any equipment or other help you need
- Repaying interest and capital on any loan taken out by you
HEALTH & WELFARE
The Health and Welfare LPA is used by you the Donor to appoint an Attorney to make decisions about personal welfare which can include health care and medical treatment decisions and might include decisions about:
- Where you should live and who you should live with
- Your day to day care, including diet and dress
- Who you may have contact with
- Consenting to or revising medical examination and treatment on your behalf
- Arrangements needed for you to be given medical, dental or optical treatment
- Assessments for and provision of community care services
- Where you should take part in social activities, leisure activities, education or training
- Your personal correspondence and papers
- Rights of access to personal information about you
- Complaints about your care or treatment
The Health and Welfare LPA can only be used when you lack capacity to make a specific welfare decision.
If you have no Lasting Power of Attorney in place and you lose mental capacity in relation to matters concerning your health and welfare or property and financial affairs, substantial difficulties arise. It will then be necessary to ask the Court of Protection to appoint a Deputy to make decisions on your behalf in relation to one or more matters.
FINANCIAL AFFAIRS FROZEN
A Financial Deputy will be needed if you lose mental capacity, as all your financial affairs will be frozen by financial organisations as soon as they become aware that you lack mental capacity. This can also occur when there are joint accounts.
The Deputy can be anyone, such as a family member, friend, solicitor, or a local authority’s Director of Adult Social Care.
The Court of Protection will only make an order for the appointment of a Deputy if a full application is made to the Court. This will usually be made by a family member or a friend, but is often made by a solicitor of a local authority. The Deputy must be at least 18 years old, but in the case of property and financial affairs, a Trust Corporation may be appointed. It will be possible to appoint two Deputies who can act jointly or jointly and severally, or jointly in respect of some matters and jointly and severally in respect of others.
The Deputy is to be reimbursed out of the patient’s property for their reasonable expenses and may similarly be remunerated if the Court so directs. The Court can give powers to the Deputy to take possession or control of any or any specified part of the patient’s property and to exercise all or any specified powers in respect of the property, including powers to invest in any way the Court decides. The Court of Protection might require the Deputy to give to the Public Guardian security for the due discharge of their functions. The Court may also require the Deputy to submit to the Public Guardian such reports and at such times and intervals as the Court may direct.
ENDING OF DEPUTYSHIP
The appointment of the Deputy will continue until the patient dies or recovers. The Deputy can retire at any time, but then a full application must be made to the Court to get an order to appoint a replacement, who will need to be in place before the Deputy can step down.
The general rule on the question of who pays is that when a Financial Deputy is appointed, the costs are paid out of the patient’s estate. If it is necessary for a Deputy to apply for orders from the Court of Protection with regard to the patient’s welfare, then there is no order for costs and so the Applicant has to pay. This effectively acts as a deterrent to any welfare applications. If the patient dies before the Financial Deputy Order is in place, the costs and expenses are an expense of the estate and paid by the Personal Representative in due course.
I have spoken to many people who have had to go through the Court-appointed Deputies route. They all attest to the huge amount of stress that such applications cause, their long-windedness, and the tremendous areas of difficulty they have in discharging their function as Deputy.
MONITORING BY COURT
If you do not have a Lasting Power of Attorney in place and were to suffer a stroke depriving you of mental capacity then your next of kin or Social Worker is left with no alternative but to go down the route of getting the Court to make an order to appoint an Attorney. The Court will then keep a very close eye on actions taken. The Court can also revoke an appointment of any Deputy if the Court is satisfied the Deputy has behaved or proposes to behave in a way which contravenes the authority conferred on the Deputy by the Court, or acts in a way which is not in the patient’s best interests.
If you have not yet considered LPAs then I would urge you to do so. Do contact me here at Busbys on 01288 359000. Busbys has the Lexcel qualification awarded by external assessment. Lexcel stands for ‘Legal Excellence’ and is a testament to our excellent client service.