There may come a time when you lose the mental capacity to make your own decisions, or when a loved one loses that capacity and becomes unable to handle his or her affairs. Clients often wish to make arrangements in advance by way of a power of attorney, appointing someone (the attorney) to make decisions on their behalf on matters ranging from property and finance to health and welfare. Alternatively if you care for someone who has lost the capacity to make their own decisions but did not make a power of attorney beforehand, you may need to apply to the Court of Protection for a court order that you or someone else be appointed (as deputy) to make decisions for them.
We aim to offer clients practical and timely advice in these circumstances and to explain the relevant procedures set out in the Mental Capacity Act 2005.
Lasting Power of Attorney
A Lasting Power of Attorney is a legal document by which you appoint an attorney to make decisions on your behalf. It can specify which decisions you want to be made on your behalf, by whom and how those decisions should be made. You can also state in what circumstances the Lasting Power of Attorney will come into effect, for example that it can only be used once a doctor has certified that you have lost the mental capacity to make your own decisions. For further information about the format of a Lasting Power of Attorney please read our guidance note or contact us for further details.
You must be considered to have sufficient mental capacity at the time that you make the Lasting Power of Attorney and this is confirmed within the document by a certificate provider. A solicitor can act as a certificate provider and in discussing the Lasting Power of Attorney with you, we decide whether to give that confirmation. In some circumstances, including if you are elderly, suffer ill health or believe your Lasting Power of Attorney may be challenged by a third party, we require that you obtain a doctor's opinion that you have sufficient mental capacity to understand the importance and effect of the Lasting Power of Attorney.
In order for the attorney to be able to act under the Lasting Power of Attorney it must be registered with the Office of the Public Guardian, the court designated to register powers of attorney, help attorneys carry out their duties and protect people who lack the mental capacity to make decisions for themselves. The registration procedure incorporates safeguards, including a 5-week time period for named third parties to object to the registration of the Lasting Power of Attorney.
The attorney's duties include to make decisions within the limits set out in the Lasting Power of Attorney and to make those decisions in your best interests. Where possible the attorney must also take your wishes into account. If the attorney does not perform their duties properly they may have to reimburse you for any losses you have suffered.
Lasting Power of Attorneys replaced Enduring Power of Attorneys (which dealt with property and financial affairs only) but an Enduring Power of Attorney can still be used, subject to registration with the Office of the Public Guardian, if made and signed before October 2007.
Court of Protection
In circumstances where a person has not appointed an attorney and since lost the mental capacity to do so, it may be necessary to apply to the Court of Protection. The Court of Protection makes decisions for people who are unable to do so for themselves and can order that an attorney (in this case called a deputy) be appointed to make decisions for the person who has lost mental capacity.
Common applications to the Court of Protection include to be appointed as deputy, to ask the court to make a decision about a person's property and financial affairs or their health and welfare or to make a will on that person's behalf.
The court also has the power to remove deputies or attorneys who fail to carry out their duties, make decisions as to the validity of powers of attorney and deal with cases in which someone has objected to the registration of a power of attorney.
We can advise as to the format and procedure for applications to the Court of Protection and represent you at court hearings. We understand that it is not always cost effective or necessary for us to represent you at court therefore, where appropriate, we act for clients in preparing the paperwork for the application to the Court of Protection and providing further advice as and when required.
Our fee for preparing and registering a Lasting Power of Attorney is £400 plus VAT and disbursements. The disbursements will include the registration fee payable to the Office of the Public Guardian, which is currently £82. Please note however that if we are required to visit you at home, we may charge more based on the time spent travelling to see you; we will agree the fee with you before we begin any work. For further details please contact Naureen Matlib on 020 7700 0265 or firstname.lastname@example.org.
Our fees for acting in connection with an application to the Court of Protection will be based on the time we spend on your case and the hourly rate of the solicitor dealing with your matter. For further details and a provisional costs estimate please contact Stephen Friday on 020 7697 4971 or email@example.com.