Welcome to the Wansbroughs Private Client - Wills, Tax, Trust and Probate Update for November 2010. Making financial or welfare decisions for someone without capacity
Many people now find themselves in the position of needing to look after the finances or wellbeing of a friend, neighbour or relative who is not able to make decisions for themselves due to age, illness or injury. This can be a difficult situation and often no one has the power to deal with the banks and other agencies on behalf of the person without capacity. Sometimes that person will have prepared a Lasting Power of Attorney or an Enduring Power of Attorney to authorise someone to help in these circumstances. However, where no such document exists an application will need to be made to the Court of Protection to appoint a Deputy to act on behalf of the person without capacity. Deputyship The Court of Protection has the power to appoint a friend, relative or professional to be appointed to act as a Deputy for someone without capacity. The Court can appoint Deputies to deal with property and financial affairs and/or personal welfare decisions. Most commonly the Court will give an appointed deputy specific powers to assist with property and financial matters. The Court will usually give a deputy powers enabling them to access the person without capacity's funds, invest on their behalf, sell their property, settle liabilities and even make gifts on their behalf. All these powers must be used only in the person without capacity's best interests and there are a number of mechanisms to protect against abuse. The Court does also have the power to appoint a Deputy to make treatment and welfare decisions on behalf of another but this type of order is more unusual. The Court is reluctant to make this type of Order given the serious nature of the decision-making power given to the Deputy. However, this type of Order may be suitable for example if the person without capacity requires serious ongoing medical treatment; are thought to be at risk; or the family cannot agree on treatment. Please contact us for advice about your specific situation, we can help with the application and guide you through the process. Lasting Powers of Attorney If you are planning for the future we would strongly recommend that you consider making a Lasting Power of Attorney whilst you are of sound mind. This will give you reassurance that your chosen attorneys will be in a position to make decisions on your behalf should they need to. This will also make things significantly easier and quicker for your attorneys if you do start to need help and will avoid a more delayed and substantially more expensive application for the appointment of a Deputy. A Lasting Power of Attorney ("LPA") is a legal document in which a person (the donor) gives legal authority to one or more other people (the attorneys) to carry out matters on his or her behalf. The most common type of LPA authorises your chosen attorney to make financial decisions on your behalf. However you can also make a personal welfare LPA which allows your appointed attorney to make health and welfare decisions for you, including the treatment you receive, if you do not have the capacity to make these yourself. Alternatively, you may prefer to make a 'living will' setting out your views on treatment rather than leave these decisions to someone else. Enduring Powers of Attorney Before the introduction of LPAs the Enduring Power of Attorney ("EPA") allowed the appointment of attorneys to help with financial and property matters. It is no longer possible to make an EPA, however, existing EPAs will continue to be valid but must be registered with the Office of the Public Guardian as soon as the donor loses mental capacity. Please contact us for more guidance about EPAs or for help with the registration process. If you would like further information or guidance on this subject, then please speak to your usual contact at Wansbroughs. | 
