Getting your affairs in order - November 2020

In circumstances where an individual loses mental capacity, they may need to rely upon someone to make decisions on their behalf. Lasting Powers of Attorney (‘LPAs’) give this power to a person prior to capacity being lost. In the absence of an LPA, a family member or loved one may need to make an application to the Court of Protection to obtain a ‘deputyship’ for the person who has lost capacity.

Someone who is incapacitated may be unable to manage their personal or financial affairs. They may also be unable to make appropriate medical decisions for themselves. Once a deputy is appointed they can make the necessary decisions on behalf of that person.

There are two types of deputy, the first type is a property and affairs deputy. This enables the deputy to manage someone’s affairs on their behalf, which includes managing bank accounts, buying and selling property and dealing with utility bills. A property and affairs deputy must keep proper accounts and are required to send an annual report to the Office of the Public Guardian (‘OPG’) every year, which explains the decisions the deputy has made.

The second type is a personal welfare deputy. Where an individual is unable to make decisions about their own welfare, medical treatment or care, they may need someone to make these decisions for them. This type of deputy appointment is made only in extreme circumstances where there are serious concerns over the individual’s care. Otherwise the Court will make decisions on a case-by-case basis

In order to be appointed as a deputy, the necessary applications need to be made to the Court of Protection. This can be a very timely and costly process. In most cases, obtaining a deputyship can be avoided by the early preparation of the appropriate LPA.

Statutory Wills

Someone who has lost the mental capacity to manage his or her finances may still have the ability to make a Will. However, if an individual does not have the necessary capacity to make or deal with their Will, you can apply to the Court of Protection if you want to make (or change) a Will on behalf of someone who cannot do it themselves. A Will that is made by the Court of Protection is known as a Statutory Will.

An individual will be classed as unable to make a Will if they cannot understand;-

• What making or changing a Will means;
• How much money they have or what property they own;
• How making or changing a Will might affect the people they know (i.e. potential beneficiaries that are included or excluded from the Will).

An application is normally made by the person authorised to act for the person lacking mental capacity. This is often a Court of Protection deputy or someone with a LPA.

It is essential to get your affairs in order as early as you can to avoid the need for Court applications if at all possible. If you would like to discuss any of the information contained within this article, or would like further information or advice about making a Will, LPAs or obtaining a deputyship. If you would like further information please call us on 01228 552222.