Court of protection
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Powers of attorney
The importance of having a power of attorney in place, at any stage of your life, 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.
A General Power of Attorney can be drawn up to help you manage a relative’s affairs for a short period of time – perhaps whilst they are abroad or in hospital. A General Power of Attorney can only be used if the person making the power (the donor) has mental capacity.
Lasting Power of Attorney
Since October 2007, the only way to ensure that your family can deal with your assets should you lose capacity is through executing a Lasting Power of Attorney (LPA). There are two different types of LPA; one which deals with property and financial affairs and one which deals with personal welfare. The person making the LPA (the donor) can choose whether they wish to make either or both types of LPA.
It is vital that anybody looking to create an LPA, in either form, seek expert legal advice before doing so. While many people might consider the task of creating an LPA too time consuming and expensive, it would be wise to think seriously about the security the power might provide you with. Our private client solicitors can assist with the application to ensure it is executed efficiently and correctly.
If you or a loved one loses capacity and a power of attorney is not in place, an application to the Court will need to be made for someone to be appointed as a deputy.
If you or a relative do not have a power of attorney in place and subsequently lose capacity, a deputyship application to the Court of Protection can be made.
We can provide guidance through the application process which can take many months to finalise with the courts. One of the many disadvantages to deputyship is that 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 also has to account to the Court at all times and provide annual accounts and information on resolutions made on behalf of the incapable person for the Court to approve.
If a relative has lost mental capacity and does not have a will or has a will that is old or poorly drafted, a Statutory Will application to the Court of Protection can often rectify the situation.
Our private client solicitors can guide you through the often lengthy and complex process and offer advice as to the likely success of the application.