Lasting Power of Attorney vs Court of Protection
Which one to use and when
As healthcare improves, people are living longer than ever before and, for the first time ever, dementia is the leading cause of death in the over 70s. However, while some conditions cause a slow decline in health, giving you time to get your affairs in order after diagnosis, a serious accident can change everything for anyone in a heartbeat. Time is not something you should take for granted.
In order for someone to make decisions on your behalf there must be either a Lasting Power of Attorney or a Court of Protection Deputy in place to take over.
Lasting Power of Attorney
Appointing a Lasting Power of Attorney enables you to choose someone– a friend, relative or solicitor – to deal with your affairs in the event that you are unable to. This could be due to illness, accident or even imprisonment and can be temporary or permanent. There are two parts to an LPA application that your Attorney could have control of;
- Health and Welfare – the power to make decisions on your behalf about your medical care and living arrangements
- Property and Financial Affairs – the power to make decisions on your behalf regarding money; with access to your bank accounts, saving, shares and investments etc. This element can be activated at any time – if you are stranded abroad for example, you might need help getting access to your money
An LPA agreement is easy to put in place – you can even do it yourself online – although, given the implications of what your Attorney may be able to do, we would always recommend you seek legal advice. You can register an LPA immediately or you can wait until you need it. Registration can take around 9-10 weeks so it might be risky to wait. It can also be reversed should your situation or condition change and it can be contested if anyone feels your Attorney is NOT acting in your best interests.
So, who needs an LPA? Essentially, anyone over the age of 18 that has a property, bank account, credit card, car, utilities account or financial agreement would benefit from having someone legally appointed to take of those things in the event that you can’t. Anyone who has children, is a primary carer or even owns a pet should know exactly who will step up if you can’t look after them anymore. Appointing an LPA of your choosing offers you control in the worst of circumstances.
And who can be an Attorney under an LPA? You can choose anyone to be your Attorney but you must choose wisely. This person could one day be in control of every aspect of your life from which brand of cereal you eat in the morning to where you live. It needs to be someone you can trust not to let you down and who will make sure you get everything you need and would want. Your Attorney should be able to make sensible financial decisions and keep reasonable records of their activities should anyone ever query what they are doing. And they should probably be younger than you, so they are less likely to fall ill when you need them the most.
Court of Protection
The Court of Protection comes into play if you no longer have the mental capacity to make your own decisions and there is no LPA in place. It is also required for children with reduced mental capacity that reach the age of 18, when parents and legal guardians no longer have any rights over them. A social worker, doctor or GP can apply to the CoP if they believe it is necessary, but the choices are far more limited and it’s a more formal role that comes with very closely monitored responsibilities:
- A court assigned Deputy must present detailed accounts every year showing every penny spent on your behalf with evidence on every decision to prove due diligence.
- Friends and family can only become a Deputy if they can prove their suitability and will be required to declare any previous bankruptcy orders, criminal offences etc.
- Your Deputy will need to have insurance or a bond in place to cover the value of everything they are now responsible for on your behalf. They will be held accountable should anything go missing or be damaged
It can take up to 12 months for the Court of Protection to appoint a Deputy. It’s also a more costly affair (£950 plus VAT for the initial set up and a further £365 for any amends) and it should include every possible eventuality so that further applications need not be made. A legal professional can help you consider all the aspects of a CoP application to ensure everything is covered from the outset, from being able to sell a property on your behalf to seeking a Deprivation of Liberty order which can allow force or restraint to be applied to give critical medical treatment or place you in a care facility. A Deputy Bond (liability insurance) will need to be in place before a Deputyship Order is issued.
Not everyone deemed to have reduced mental capacity is unable to make any of their own decisions; an Attorney or Deputy should be able to ascertain how well you understand what is at stake and will support your wishes if they agree it is the right course of action.
What happens when a Deputy has been appointed? A court appointed deputy has series of steps to take to ensure the security of your home, especially if you are no longer living there.
- Step 1 – Change the locks – it’s unlikely they’ll know who has keys to your home and once they are responsible for it they’ll need to ensure no one can enter without their permission
- Step 2 – Itemise everything in the property – often with the help of a professional valuer. Everything needs to be listed so they can be sure nothing goes missing and so they know what you have that you might need in your new residence
- Step 3 – Insure the property and the contents
- Step 4 – Secure the property – this could be by arranging anything from an alarm system and CCTV to arranging regular inspections to check doors, windows, electrics, gas, plumbing and drainage
- Step 5 – Find and remove financial paperwork. Everyone you deal with will need to be notified and records kept for the annual accounts
- Step 6 – Decide on what to do with the property which will depend on the circumstances. Does it need to be sold to fund alternative living arrangements, adapted so that you can return to it to live independently or rented out to maintain an income?
Whether working with an Attorney or Deputy, our Court of Protection Solutions team is able to help with many of these steps so that they can focus on the more personal aspects of their role. From changing the locks, valuing the property and its contents, draining down the heating system and finding the paperwork to preparing a Property Valuation Proposal and selling the home for the best possible price, we have a solution for everything.
To find out how we can help you call 0808 164 6390 or visit our website page here