More than 800,000 people in the UK have dementia, and this number is expected to rise to over one million by 2025. Without a valid Lasting Power of Attorney (LPA), people who lose mental capacity face big legal and practical issues. Family members don’t automatically manage their loved one’s affairs. They must get permission from the Court of Protection, which can be long, costly, and uncertain.
Key Takeaways
- Without an LPA, someone must apply to the Court of Protection for deputyship if an individual loses mental capacity.
- Becoming a deputy can be a lengthy and costly process.
- Applying for a Deputyship Order is more expensive and time-consuming compared to setting up an LPA.
- Decision-making powers may go to someone not chosen by the individual.
- Over 800,000 people in the UK currently have dementia, highlighting the importance of having an LPA.
Understanding Lasting Powers of Attorney in the UK
A Lasting Power of Attorney (LPA) lets a trusted person make decisions for someone if they can’t make their own choices. It makes sure things are handled by someone you trust, following your wishes.
What is a Lasting Power of Attorney?
A Lasting Power of Attorney lets a person choose someone to look after their affairs if they lose the ability to do so. This legal document gives the chosen person the power to make decisions without needing a court’s say-so. For it to work, the LPA must be registered with the Office of the Public Guardian.
Types of Lasting Power of Attorney
There are two main types of Lasting Powers of Attorney:
- Property and Financial Affairs: This LPA helps with managing things like bank accounts, bills, pensions, and property. It gives full support in handling the donor’s financial matters.
- Health and Welfare: This type deals with personal care, like medical treatment, where you live, and daily care. It makes sure decisions about your health and welfare match your wishes.
How to Create a Lasting Power of Attorney
- Choose Your Attorneys: Pick people you trust to manage your affairs. Make sure you talk about what they will do.
- Obtain and Complete Forms: You can get LPA forms online from the Office of the Public Guardian or ask them directly. Fill them out carefully, noting any specific wishes or limits.
- Signatures and Witnessing: You need to sign the forms with a ‘certificate provider’s’ witness, like a doctor, social worker, or solicitor, who confirms you understood and wanted to do it.
- Registering the LPA: Send the form to and register it with the Office of the Public Guardian. This can take a few weeks, so plan ahead.
Creating an LPA is fairly simple, but getting advice from a solicitor can be helpful, especially if things are complicated. With an LPA, you make sure your financial, health, and welfare decisions are made by people you trust, following your own wishes.
The Role of Mental Capacity in Decision Making
It’s vital to understand mental capacity in decision-making, especially for personal and financial matters. Mental capacity means being able to make your own choices. If someone loses this capacity, others must help make important decisions.
Mental Capacity Explained
Mental capacity means understanding, retaining, and processing info for decisions, and then sharing those decisions. Laws help decide if someone can make their own choices. They must:
- Understand the info for the decision
- Remember the info long enough to decide
- Consider the info for the decision
- Share the decision clearly
If someone can’t do these things, they can’t make decisions on their own. This affects their daily life and money matters.
Causes of Loss of Mental Capacity
Many things can take away someone’s mental capacity to decide for themselves. These include:
- Dementia, which slowly worsens thinking skills
- Mental health issues that change normal thinking
- Brain injuries that harm thinking and decision-making
- Alcohol or drug misuse, causing severe mental problems
- Side-effects of some treatments that harm brain function
When someone can’t decide for themselves, a Lasting Power of Attorney (LPA) is key. An LPA lets a trusted person make decisions for the person who can’t. This ensures their personal and financial matters are looked after as they would wish.
An LPA should be set up when the person still has the capacity to choose someone to act for them. This way, they plan for a future where they might not be able to make decisions.
What happens if you don’t have a Lasting Power of Attorney in the UK
If we don’t set up a lasting power of attorney (LPA) in the UK, the consequences can be severe. When someone becomes incapacitated without an LPA, the Court of Protection takes over. They appoint a deputy, which is costly and stressful for the family. Girlings Solicitors say a shocking 60% of UK adults haven’t made an LPA, leaving their affairs at risk.
Without an LPA, our family can’t make decisions on our finances and health care. The deputy chosen by the court might not know us well or share our wishes. They pick based on legal rules, not personal ties.
Appointing a deputy is a long process. The Office of the Public Guardian reports a 40% rise in applications to the Court of Protection. This shows the trouble families face without an LPA. The process can take a year and cost families thousands, affecting their well-being.
Managing shared assets becomes hard during the court process. Until a deputy is in place, it’s tough to handle joint finances. This adds more stress to the family. It highlights why setting up an LPA early is crucial.
Having an LPA lets us pick a trusted person to make decisions for us if we’re incapacitated. This avoids the high costs of deputyship and gives us peace of mind. We can choose different people for different LPAs, fitting it to our needs.
In summary, not having a lasting power of attorney puts us and our families at risk. The Court of Protection might not follow our wishes. It’s vital to have an LPA to protect our choices and save our families from stress and expense.
The Court of Protection and Deputyship
The Court of Protection is key in looking after people who can’t make their own decisions. If someone has no Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA), they need a deputyship application. The court then picks a deputy to make choices for them.
There are two kinds of deputies: property and financial affairs deputy and personal welfare deputy. Personal welfare deputies are for ongoing or urgent decisions but not for those under 16.
Property and affairs deputies deal with money matters like paying bills or managing accounts. The court checks each application carefully to make sure it’s right.
Getting to be a deputy is complex and requires a lot of effort. A deputyship application must follow strict laws and involve ongoing checks. Deputies must send yearly reports to the Office of the Public Guardian (OPG) about their decisions and actions.
Being a deputy is harder and more costly than having an LPA. We suggest an LPA to avoid the big responsibilities and extra work of being a deputy.
In short, the Court of Protection makes sure people without an LPA or EPA get the care they need through a detailed deputyship process. Yet, for ease, personal choice, and less work, an LPA is the better choice.
Responsibilities of a Court-Appointed Deputy
In the UK, if someone can’t make decisions, a deputy might be appointed by the Court of Protection. This deputyship order sets out clear duties and limits. It’s key to know what a deputy responsibilities are and the role’s impact on caring for someone who can’t decide for themselves.
Duties and Limits of a Deputy
Deputies follow the Mental Capacity Act, making decisions in the person’s best interest. They must act within the Court of Protection‘s guidelines. Key duties include:
- Managing finances, such as paying bills and organising pensions.
- Making health and welfare decisions, if applicable.
- Seeking court approval for significant decisions, like selling property.
Deputies must send yearly reports on their actions and how they manage money. Not doing this could lead to losing their role.
Process of Becoming a Deputy
Applying to be a deputy is a detailed process with the Court of Protection. It can take 3 to 9 months. To apply, you must:
- Meet legal criteria and get the right assessments.
- Fill out detailed forms showing you’re right for the job.
- Provide proof that a deputy is needed.
There’s a chance you might not be chosen, as professionals might be picked for complex cases. Keeping up with the requirements and showing a high level of care helps your application.
Costs and Duration of Deputyship
Being a deputy comes with costs like application fees, yearly charges, and legal bills. If you handle money and property, you’ll need a security bond from an approved insurer. This adds more responsibility and cost.
The Court of Protection decides how long the deputyship lasts, depending on the situation. It usually ends if the person gets their capacity back or dies. Deputies should know they might need extra applications for things like selling property.
Knowing about the deputy responsibilities, the application process, costs, and how long the role lasts is vital for anyone thinking of taking on this important job.
Independent Mental Capacity Advocates (IMCAs)
Independent Mental Capacity Advocates (IMCAs) are key in helping people who can’t make important decisions on their own. They support those who don’t have family or friends to speak for them. This ensures they get the help they need in making healthcare choices and other big decisions.
The Mental Capacity Act 2005 outlines the role of IMCAs. They talk to the person, look at their records, get expert advice, and collect all the info needed. IMCAs are needed for big decisions like changing where someone lives, serious medical treatments, and protecting adults.
When an IMCA Is Appointed
An IMCA is brought in when someone is facing big healthcare choices or a big change in where they live and has no one to speak for them. Authorities or healthcare teams often call on IMCAs to help. This makes sure the person’s wishes and values are considered, even if they can’t say them out loud.
Role and Responsibilities of an IMCA
An IMCA’s main job is to make sure the person they represent’s wishes and feelings are heard. They give advice to those making decisions and can question decisions if needed. They don’t have the same power as an attorney under a Lasting Power of Attroney, but they are key in making specific decisions for the person’s best interests.
IMCAs are trained to deal with complex healthcare choices, making sure the person’s rights and wishes come first. Even though they can’t do everything an attorney can, they are crucial for those who can’t make decisions and have no one else to speak for them.
Advantages of Having a Lasting Power of Attorney in Place
Having a Lasting Power of Attorney (LPA) brings many benefits. It gives you and your loved ones peace of mind. It’s a key tool for managing your affairs when you can’t do it yourself.
Avoiding the Court of Protection
One big plus of an LPA is avoiding the Court of Protection. Without an LPA, your family might have to go through a long, costly process to manage your finances. This process is stressful and adds to the difficulty of an already tough time.
With an LPA, we skip this hard process. Our wishes are respected right away, without needing court approval.
Ensuring Your Preferences Are Met
An LPA makes sure our wishes for care and money management are followed. We pick trusted people to make decisions for us. This way, our health, welfare, and finances are looked after as we want.
With more people over 65 in England and Wales, planning for the future is key. An LPA lets us give clear instructions to our attorneys. This ensures our wishes are clear and followed without confusion.
Simplifying Financial and Personal Decisions
LPAs make handling money and personal matters easier. They cover health, welfare, and finances. Our attorneys can then make important decisions for us, like managing money, paying bills, and making repairs.
They can also decide on where we live and what social activities we can do. LPAs help us plan for these things ahead. This means our finances and personal life are looked after in a clear way.
Creating an LPA helps us get ready for the unexpected. It means our affairs are in the hands of someone we trust. This planning is very important. It reduces stress for our loved ones and brings clarity in uncertain times.
Conclusion
Planning for the future, especially when you might lose mental capacity, is crucial for everyone. Setting up a Lasting Power of Attorney (LPA) lets you make sure your wishes are followed. It also ensures your affairs are managed as you wish, even when you can’t make decisions yourself.
Without an LPA, a court might decide who looks after your affairs. This can be less personal and more complicated. AgeUK says about 825,000 people in the UK live with dementia. This shows how important it is to have an LPA ready.
There are different types of powers of attorney, like the LPA for health and care, and another for financial decisions. This gives you more control and peace of mind. For more info on what a Power of Attorney can and can’t do, check out MP Estate Planning’s guide.
At MP Estate Planning, we know how complex and tough future planning can be. We help clients set up an LPA to avoid the stress and costs of a court-appointed deputy. Having an LPA means decisions are made with your values in mind, keeping your estate safe. Don’t delay; schedule a consultation with us and start planning your estate with us today for peace of mind tomorrow.