As September is World Alzheimer’s Month, it’s worth considering the thorny legal issue of what happens if a loved one develops dementia without having put in place lasting powers of attorney (LPA).
World Alzheimer’s Month highlights the wide-ranging problems facing people with dementia and their families – and the lack of an LPA is among the most emotionally upsetting and legally challenging.
Why the role of the Court of Protection is so important
If a relative or friend is diagnosed with dementia they may not be able to carry on making their own decisions.
Many people understand that a Lasting Power of Attorney is a legal document enabling one or more people to make decisions on a person’s behalf if they lose capacity to do so themselves.
However, an LPA can only be set up when an individual has mental capacity. If an LPA has not been arranged before someone loses this capacity, a ‘deputyship’ application can be made to the Court of Protection. This court specifically looks after individuals who can no longer make their own decisions.
Successful deputyship applications enable relatives or friends to be appointed as the person’s decision-maker, or deputy.
What powers do court-appointed deputies have?
The court bases its decisions on the Mental Capacity Act. As with an LPA there are two areas of decision-making – one for property and financial affairs; and the other for personal welfare.
Where personal welfare is concerned the court will usually only appoint a deputy if there’s doubt over whether decisions will be made in the person’s best interest – for example, if the family disagrees about care; or if someone needs to be appointed to make a specific decision – such as where the mentally impaired individual will live.
Costs, fees and time-scales
Various forms must be submitted to the court to apply to become a deputy and there is also a fee of £400. A medical assessment, costing between £100 and £200, must also be sent with the application. The court normally takes five to six months from the date of application to appoint deputies.
When this happens, further fees are incurred depending on the value of the estate at the time the application was made. These are known as security bonds.
Who can apply to be a deputy?
Any person aged 18 or over can apply to be a deputy, although any criminal convictions or bankruptcy arrangements must be declared to the court as part of the application.
Professional deputies, such as a solicitor should be appointed in cases where the person lacking capacity has a large estate.
Deputies are supervised by the Court of Protection and must complete annual reports explaining to the court the decisions they have made as a deputy.
For further advice on mental incapacity issues, call Holly Gethin on 0161 761 4611, or email her at holly.gethin@whnsolicitors.co.uk
