If you have no Lasting Power of Attorney UK, then if you lose the ability to make decisions, the Court of Protection will have to appoint a DEPUTY to manage your affairs (even if you are married.) The only way to prevent this is to have both types of Lasting Power of Attorney in place – Health and Welfare and Finance.
No Lasting Power of Attorney? You will get a Court of Protection Deputy?
If there is no one legally appointed to manage a persons affairs under a Lasting Power of Attorney UK or old style Enduring Power of Attorney and they lose the ability to do so themselves, then not much can be done until someone has successfully applied to the Court of Protection to be appointed as that persons deputy. If there is a husband or wife or civil partner, they will normally apply, but it could be the Local Council or another official body or a local solicitor who applies. If there is a dispute over who should be appointed, the lawyers fees are ALL paid by the incapacitated person!!! Would you want that?
When the Court of Protection makes an appointment as Deputy they may attach conditions to it, and the deputy will be expected to buy insurance every year to ensure that any money or property they steal is repaid by the insurance company.
Role and duties of a Court of Protection Deputy
The Deputy order from the Court of Protection will set out the extent of your powers. It can apply to any area or all areas in which the person could have acted or made decisions for themselves if they had the ability.
Your powers might relate to:
- personal welfare, such as giving or withholding consent to medical treatment and/or social care interventions.
The Powers the deputy is given will depend on what the Court of Protection considers the needs of the person the deputy has been appointed to look after.
When acting as Deputy the decisions made can have a major impact on the person who lacks capacity. In order to carry out the responsibilities sensitively, responsibly and rigorously the deputy should always:
- only make decisions you the deputy is authorised to make by the order of the Court.
- adhere to the Mental Capacity Act 2005’s five statutory principles.
- make decisions only in the person’s best interests.
- fulfil the deputy’s duty to apply certain standards of care and skill (a duty of care) when making decisions. And
- have regard to all relevant guidance in the Code.
Clearly, where a Local Authority, solicitor or other professional is appointed they will be entitled to be paid for the time they spend. This may be considerable as they are required to review all decisions with the incapacitated person if at all possible. It is not at all unlikely that the costs could exceed £10,000 a year plus VAT – that might cover 1 hour a week of a solicitors time.
So with around a 60% chance that anyone will lose the ability to make their own decisions at some stage in their life – car accident, raised paving stone, severe illness, mental health problems alone strike 1 in 7, and the one everyone fears – Alzheimers’. So the choice is yours, take the risk of the (wrong?) Deputy being appointed or get organised with both types of Lasting Power of Attorney. Not much of a choice really – LPA or Deputy!