28 September 2021
The importance of Lasting Powers of Attorney
Consultant solicitor, Malcolm Emery, shared his expertise on Lasting Powers of Attorney (LPAs) in the first of a series of webinars looking at legal issues, hosted by the Council. Members of the Council can watch the entire webinar back here but here Malcolm outlines what happens if someone does not have an LPA in place.
A recent survey established that at least 25% of the UK population will suffer with some form of mental health issue or event, during their lives. LPAs can be viewed as an insurance mechanism, so if someone loses mental capacity, during such an event, a loved one can step in to support them.
People shouldn’t be frightened into arranging an LPA, but to understand just how important they are, it’s useful to look at what would happen if someone without an LPA in place lost mental capacity.
First of all, the individual’s financial affairs would be frozen, which means no documents can be signed, bank accounts cannot be accessed and bills cannot be paid from the donor’s own funds. To move things, forward the only option is for a family member to apply to the Office of the Public Guardian to be appointed as a deputy.
The application would be made to the Court of Protection. The applicant must be aged 18 and must demonstrate they have the necessary experience to make financial decisions on the subject’s behalf. The court can appoint two or more deputies but and once the application is approved it will detail what the deputy can and cannot do.
A deputyship application can also be made in relation to health and welfare decisions. It is common for the court to make an order in relation to a specific issue rather than allowing the deputy to have a non-specific power to make decisions. This is because the court prefers to retain powers in this respect given the sensitive and often complex nature of the decisions.
It is by no means a quick process and even then, about 70% of all health and welfare applications are refused. Any decisions not covered in the court order will be made by healthcare professionals and other interested parties such as social services, the local authority and family members. So even if a family manages to overcome the administrative hurdles, it’s certainly not the end of the matter.
But it doesn’t have to be like that. LPAs are relatively straightforward to set up and they can be incredibly beneficial for the subjects.
The views of contributors are not necessarily those of the Council. For more information about Malcolm, including his contact details, click here.