What happens when it’s too late to make a Lasting Power of Attorney?

Insights / / Bristol

If a friend or relative is finding it difficult to make decisions about their finances or property, someone may need to be appointed to make these decisions on their behalf. But what happens when it’s too late for them to prepare a Lasting Power of Attorney?

If you are caring for someone whose mental capacity is seriously in doubt and they have not made a Power of Attorney, you may not be legally entitled to manage their financial affairs without first being appointed as their Court of Protection Deputy.

What is a Power of Attorney?

A Power of Attorney allows someone (usually a close relative, friend or carer) to look after things on behalf of someone else, should that person become unwilling or unable to do so themselves.

Powers of Attorney are often (and incorrectly) associated with the elderly. But, it’s useful for people of all ages to have a power of attorney, just in case something unexpected were to happen, such as falling ill or being involved in an accident which resulted in life-changing injuries.

Until 2007, if you made a power of attorney, it was called an Enduring Power of Attorney (EPA).

Following the Mental Capacity Act 2005, which came into force in October 2007, the EPA system became Lasting Powers of Attorney (LPA). An LPA is similar to an EPA but cover different aspects of life and are slightly more complicated. An EPA executed before the change in the law remains legally valid and can still be used.

When it’s too late – the Court of Protection

Both Lasting Powers of Attorney and Court of Protection Deputyships are legal methods by which decisions can be made for those lacking mental capacity. The key difference between the two is that:

  • a Lasting Power of Attorney is made before someone loses capacity, and
  • a Deputyship application is made by a third party after someone loses capacity.

Many people are surprised to hear this and assume that because they are next of kin or spouse then they do not need any formal documentation in place. Often family members continue to deal with financial matters when they have no authority to do so. If you were not aware of this then you may have been dealing with matters illegally – for example withdrawing money from a parent or partner’s sole bank account.

An example could be if your partner has recently moved into a care home and you are struggling to pay care home fees, because your partner is no longer able to access their bank accounts or write cheques. 

A Deputyship may not be appropriate where all of the incapacitated person’s assets are in joint names or where there are very few assets. However, a Deputyship order is likely to be necessary where the person who lacks capacity holds significant assets, is likely to come into money shortly (e.g. from a personal injury award or inheritance) or where a property needs to be sold. 

The application for appointment of a Deputy is made to the Court of Protection. This can be a daunting process, but our dedicated team is here to assist at every step of the way. Once appointed, Deputies tend to have similar powers to Attorneys, but with additional reporting and accounting duties to the Office of the Public Guardian. 

If there is nobody suitable to undertake the role of Deputy then we can also assist with the appointment of a Professional Deputy. 

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