10 January 2012
If you do not have a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) in place and lose mental capacity, a deputy application from the Court of Protection must be sought.
This has many disadvantages:
• The application process is lengthy and can take many months to finalise with the courts
• During the application process, assets are effectively frozen and cannot be dealt with until the deputy is appointed
• If relatives cannot agree on who should act or how, then the Courts may appoint a health professional or social worker instead of a family member as the deputy
• If there are no close relatives then, again, the Courts may appoint a health professional or social worker to deal with a client's financial affairs
• If there is only one family member, the Courts may decide that they should act as deputy regardless of their suitability to perform these duties.
• The deputy often has far more limited powers than an Attorney and may have to ask permission from the Court to deal with certain assets.
• The deputy has to account to the Court at all times and the deputy has to provide annual accounts and information on resolutions made on behalf of the incapable person for the Court to approve.
• The deputy has to buy a ‘security bond’, which is payable annually. The bond price is set by the Court with the more assets a person has, the higher the bond. Although, the bond is payable by the incapacitated person, as the bond has to be purchased immediately, this money often has to be paid by the deputy and recovered by them later.
The importance of having an LPA in place cannot be stressed enough. While we all hope that we will never have to use it, it is a comforting "insurance" policy to have in place so that you know who will deal with your affairs if you are no longer able to do so yourself.
If, however, someone has already lost capacity and cannot execute an LPA, we can help guide you through the Deputyship process.
For more details, please contact our elderly client specialist Paul Lowery on 01753 279059, complete the online enquiry form or email elderlaw@bpcollins.co.uk.
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