Making a Will is one thing… but what if something happens to you during your lifetime?

• Could you transfer money around whilst your loved one is unable to?
• Could you access your loved ones bank accounts if they were taken ill?
• What would happen if bills went unpaid?
• Who can help make decisions about your loved ones health care?

Most people acknowledge that it is important to organize their affairs in the event of their death, which is why so many people make a Will these days.

However, practically no one makes similar provisions to organize their affairs should they become unable to look after themselves during their lifetime – an ever increasing possibility given the advances in medical care.

There are two types of LPA as described below:

Property & Financial Affairs LPA

A document that enables you to appoint people of your choice to look after your financial affairs in the event of mental incapacity, perhaps due to old age, illness or accident.

You can choose whether your Property & Financial Affairs LPA comes into force straight away, or only if you are mentally (and/or physically) incapable of managing your finances.

Health & Welfare LPA

This enables you to appoint people of your choice to deal with your personal and medical affairs, rather than your financial affairs, if you are unable to manage them yourself.

It is important that such arrangements are made when you are fit and healthy since the Law states that such arrangements cannot be made after the event, which can leave families with all sorts of practical problems.

A Health & Welfare LPA can only be used if you have lost capacity to make decisions yourself.

Neither document can be used until it is registered with the Courts. You and people that you elect are notified at that time and can object to the registration of the document.

Like your Will, your LPA’s can be updated and cancelled at any time should your circumstances change, as long as you have mental capacity to make the changes.

What are the consequences of not having an LPA?

If someone becomes mentally incapacitated and unable to make decisions for themselves and they have not previously executed a Lasting Power of Attorney or EPA (Enduring Power of Attorney), then someone will have to be appointed by the Court to make decisions on their behalf.

Someone will have to make an application to the Court of Protection to be appointed as Deputy. The person under the mental capacity will then be known as a “Patient of the Court”. There are various disadvantages to this happening for both “patient” and Deputy.

• In respect of Health & Welfare Deputyship, an initial application has to be made to the court to become a Deputy, this costs £365, and 80% of applicants are turned down first time.
• If permission is granted the application to be appointed as Deputy can be made, costing a further £365 and this often takes many months before the order is granted.
• The court will only ever appoint one Deputy, and if additional Deputies are required the whole process starts again incurring additional fees as described above.
• The Patient doesn’t get to choose their own Deputy.
• Deputies are supervised by the Court and annual supervision fees of up to £320 per year depending on the level of supervision required, are payable. They are supervised because the Court doesn’t know that the appointed Deputy is the person the patient would have chosen for themselves.
• There is also the possibility that the Court may appoint a court official if they believe that the applicant is not suitable to act as a Deputy. Obviously if this happens, more costs will be incurred.

However if an LPA has been made, it will take approximately 12-16 weeks to register it, which means considerably less time and makes it a considerably cheaper option.

With an LPA, registration can be done at any time after its creation, whereas an application to appoint a Deputy can only happen once the person has lost capacity. This means that there may be many months whilst the application is being considered by the Court, that the affairs of the patient cannot be dealt with.

But with an LPA if registration happened prior to the onset of mental incapacity, the Attorneys could act immediately saving months of heartache and avoiding additional costs.

If you need assistance making an application to the Court of Protection if your loved one has already lost capacity and cannot make an LPA, please get in touch.

Application to the Court of Protection for Property & Financial Affairs – £750 (plus Court fees and costs)

Application to the Court of Protection for Health & Care – £750 (plus Court fees and costs)