COVID-19 has brought anxious and daunting times. Many of us will also be concerned about our loved ones, including elderly or vulnerable family members or friends, and will be thinking about what can be done to best protect them and their wishes and interests.
Putting in place a Lasting Power of Attorney (LPA) can help you to plan for challenges ahead and our Private Client team are on hand to assist you in putting these in place as swiftly as possible.
A key point to note, is that a Lasting Power of Attorney can only be put in place while an individual still has “mental capacity”. If an individual has lost mental capacity, someone needs to deal with their financial affairs on their behalf and make decisions in respect of the individual’s personal welfare. In that case, a Deputyship Order would need to be applied for where no LPA already exists.
These are discussed below in more detail below.
An LPA is a legal document that allows an individual to appoint persons they rust to act as their ‘Attorneys’ in dealing with their affairs. As mentioned above, an LPA must be prepared and signed whilst the individual still has mental capacity.
The mistaken assumption that a spouse, child or a professional will simply be able to manage your affairs should a person become mentally incapacitated is common but totally wrong. By the time a person is no longer able to make decisions for themselves, it’s too late to arrange an LPA.
There are two types of LPA:
By obtaining proper legal advice in relation to an LPA, many failsafes, protections and restrictions can be put in place to best suit each individual set of circumstances.
Once an LPA is completed and signed, it is usually sent to the Office of the Public Guardian to be registered. Thecurrent cost is £82 per LPA for registration.
If you do not have an LPA registered and lose mental capacity, it may be necessary for a family member or close friend etc. to apply to the Court of Protection to appoint a Deputy(s) to make decisions on your behalf. This is a much more formal, lengthy and costly process than putting an LPA in place.
There are two types of Deputyship Order:
By comparison with an LPA, there is much more paperwork required for a Deputyship application, including the need to get an Assessment of Capacity from a medical professional. This makes the process much longer and more formal and, therefore, creates higher legal fees.
Further, the cost to register an LPA is £82, whereas the court fees for on Deputyship application is £365, which is a notable difference.
The extra time delay is also critical in these situations, especially if an individual needs access to funds for important care costs or standard of living payments. Unless it is “life and death”, the courts rarely give priority to urgent matters and applications usually take over 6 months to be processed.
Given the clear higher costs, and longer process of obtaining a Deputyship Order, it is best to consider putting in LPAs in place while they have the capacity to do so. Unfortunately, some medical conditions can cause an individual’s health to deteriorate drastically, which sometimes means that it can be too late for an LPA.
For guidance and advice in relation to any Private Client matters, please contact Vassos Vassou, Head of Private Client in Axiom Stone’s Private Client Team on t: 0203 827 6114 or e: firstname.lastname@example.org.
Note: the information contained in this article is accurate at the time of publication on 20 August 2020. The remarks in this article are not a substitute for legal advice on the specific circumstances of any case.