Court of Protection and Lasting Powers of Attorney

Some of the most important decisions in our lives may need to be made at a time when we are unable to do so because of illness, age, lack of mental capacity, or for some other reason. 

Fortunately, there are ways in which you can appoint someone you trust to help manage your affairs if you are unable to do so in the future. It is important to plan ahead and to have strategies in place now that will ensure your affairs are handled correctly no matter what the future holds. We can help you with this important process.

Lasting Powers of Attorney

A lasting power of attorney (LPA) is a legal document that lets you appoint someone you trust to make financial and health decisions on your behalf if you are not able to do so, or to help you make these decisions. It is up to you who you appoint to act for you should you be unable to do so, and you could choose to appoint different people to deal with Finances, than with Health. LPAs provide you with ownership and flexibility to decide how you would like to deal with your affairs, at a time when you might not be able to do so. The LPAs are registered with the Office of the Public Guardian which regulates powers of attorney.  

Many people make an LPA at the same time as making a Will. It is not difficult, but it does require filling in documents and deciding which friend or relative should be named as your attorney. Therefore, to set up an LPA, a person must have sufficient mental capacity to understand and direct their financial affairs and be able to complete the necessary forms. If they have lost that capacity, it may be too late to complete and register a power of attorney application. In this case, one of their relatives will need to apply to the Court of Protection which can be a complex and more costly process.

Types of Lasting Powers of Attorney

There are two types of lasting powers of attorney:

• health and welfare – for decisions regarding medical treatment and daily care, or moving into a care home
• property and financial affairs – to manage banking and ensure bills are paid, your property is sold at the right time for an appropriate amount and your investments are properly managed

Choosing an attorney

Provided they are at least 18 years, you can choose anyone you trust to be an attorney, for example, a spouse, child, friend, or solicitor. It is a good idea to let your proposed attorney that you are considering them as they may want to think about it before accepting such a responsible role. 

If you decide to appoint more than one attorney, you should specify whether they are to act jointly or severally or outline precisely the decisions for which each attorney should be responsible. If your attorney predeceases you, the power of attorney will automatically come to an end. 

Role of the attorney

While an attorney may be entitled to claim expenses, the role is otherwise unpaid. The attorney should act in your best interests at all times when making decisions on your behalf. They must consider all the options and choose the one that is least restrictive on your rights and freedoms. They should encourage you to participate as much as possible, considering your wishes and previous decisions, taking into account your beliefs and values, and discussing with others who know you well.

What is the Court of Protection?

The Court of Protection was created under the Mental Health Act 2005 and is based in High Holborn, London. It has the power to decide whether or not a person has the capacity to make their own decisions or to decide what is in someone’s best interest.

If someone is deemed incapacitated for any reason, temporarily or permanently, without having a power of attorney organised, the Court of Protection will choose an appropriate person to make decisions on their behalf. Family members may apply to the Court of Protection to be appointed as a deputy for their relative who has lost capacity, and this gives them the right to act on their behalf.

It is estimated that more than a million people in the UK will have dementia by 2025 but there are many reasons why a person may be unable to make decisions for themselves including: 

• being under the age of 18
• following a serious accident 
• they are too ill, mentally or physically
• they are elderly and cognitively impaired

If you need assistance, contact one of our lawyers at [email protected] or call 01865722383 for expert legal advice.

• within six months of receiving a final response to your complaint

• no more than six years from the date of act/omission; or
• no more than three years from when you should reasonably have known there was cause for complaint