What happens if I lose mental capacity and I have not made a lasting power of attorney?
Posted on 17th March, 2021

What do I mean by mental capacity?

Mental capacity is a complex subject but, at its most simplistic, it can be defined as our understanding of a given concept, situation, or predicament. It refers to our ability to be able to weigh up the pros and cons of a situation and make an informed decision. It is not black-and-white because very often it is not a case that one day we can make all our decisions and the next day we cannot make any. It is time and task-specific. This means that it depends on our understanding at a specific time, which is important if our capacity is fluctuating especially if we have good days and bad days, and it depends on what we need to understand about that specific decision we are being asked to make.

The important question that we should ask ourselves is who will make decisions for me if I cannot make them for myself? The starting point is always to check whether the person whose mental capacity is in question has done any planning for this possible eventuality by making a lasting power of attorney or if there was an old-fashioned enduring power of attorney in place.

There are two types of lasting powers of attorney:

  1. finance and property; and
  2. health and welfare

These are two very different and specific areas and you have to have both powers in place in order to make decisions in both categories.

If you have an enduring power of attorney in place you have covered the decisions that may need to be made on your behalf in relation to property and finance. However, they do not apply to welfare decisions.

Not everyone makes lasting powers of attorney and there are often various reasons why this is the case. In my experience, It can be because people are not aware that they can make powers of attorney. It can be because people think that this will impact upon their independence and don’t see it as a support tool. Sometimes the older we become the harder it is to make these decisions because we are nearer to the prospect of needing support. Some families have relationship difficulties with their children or between their children and so it makes it very difficult to decide who would be the appropriate person to be involved. In these circumstances, sometimes people choose not to make that decision because it’s easier to do that than run the risk of causing any more friction within the family. Some people do not have family and don’t know that they could ask a professional to do this for them.

If, for any reason, you or a loved one loses mental capacity, and you have not had the foresight to prepare for this situation, it is not the end of the road. There is an alternative that may offer some assistance. That is the Court of Protection.

What is the Court of Protection?

The Court of Protection is a special court that makes decisions on behalf of people who cannot make decisions for themselves. Someone could apply to the Court on your behalf and ask that they be appointed as a deputy to have the authority to make decisions on your behalf that you cannot make for yourself. That person would be referred to as a deputy.

There are two pathways for appointing a deputy. The first pathway is for property and finance which will involve stepping into your shoes and managing your affairs on your behalf in accordance with the powers conferred by the court in their order. It is very important to set out the powers that you will need when making your application.

The second pathway is for health and welfare. The Court is more reluctant to appoint a health and welfare deputy because it would prefer to deal with issues of welfare on a matter-by-matter basis. It recognises that to give someone a carte blanche ability to make welfare decisions for someone is to give them a lot of power over that person. However, the Court will look at appointing a health and welfare deputy where there are decisions that are going to need to be made about someone’s care, medical treatment, and place of residence. This will be particularly important if there are conflicting ideas as to what is the most appropriate way forward for the person who is unable to act for themselves.

The initial application to the Court is a paperwork application. The matter will only go before the Court if it is disputed. The outcome is the same as appointing an attorney but there are some extra protections for the named person. That being an insurance policy has to be put in place so that if the appointed deputy acts negligently, or if there is any impropriety, the named person will be put back into the position that they would have been in had the deputy not been appointed.

The deputy also has a duty to prepare an annual report to the Court giving an account both of the finances that have been spent in the current deputy year and any decisions that they have had to make on their behalf. The report also includes the people that the deputy has had to consult during that year.

The process for applying for a deputy does take longer than making lasting powers of attorney. In my experience, when a family is applying to the Court for an order it is because something needs to happen that cannot happen without it. This can be quite stressful for the family. It is also more expensive because you have to consider your solicitor’s fees, court fees, the cost of preparing a medical report, and the ongoing insurance costs. In most circumstances, these costs will come out of the named person’s estate.  However, if it is a disputed matter then not all costs may be allocated to the named person. That would be a matter for the Court to decide.

The plus side of a deputyship is that there is annual accountability scrutinised by the Office of the Public Guardian.

If you would like more information regarding making a Court of Protection application or making lasting powers of attorney, please contact me on jane.flaherty@everys.co.uk or 01404 541904.

 

 

 

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