Caring for someone who has lost mental capacity is hard in many respects. Doing this without the assistance of legal intervention is even more difficult. Without being appointed as either an Attorney or a Deputy, individuals designated to provide help have no legal authority to do so.

Many people assume that if they were to lose the ability to make decisions for themselves at a point in the future, through a progressive illness such as Dementia or Alzheimer’s, or through something more sudden, such as accident, stroke or coma, their spouse, children or other family members/friends can simply step in and take over. This is not the case.

In the same way a Will determines who benefits from your assets when you die, a Lasting Power of Attorney (LPA) will determine who can make decisions for you if you lose mental capacity. Many would argue an LPA is every bit as important as making a Will.

Fundamentally, you are only able to create an LPA if you have sufficient capacity to give instructions and understand the powers you are giving to another. Many of those in great physical and mental health in their 50’s, 60’s and 70’s are creating LPAs now, to ensure their needs can be met in the future.

There are two types of LPA which safeguard different aspects of your life. Property and Finances, and Health and Welfare.

A Property and Finances LPA gives the appointed Attorney authority to deal with the donor’s (person making the LPA) assets. The decisions the Attorney(s) will be able to make include – but are not limited to – buying or selling property, opening, closing or operating any bank, building society or other account, investing the donor’s savings, and making gifts on the donor’s behalf. Under a Property and Finances LPA, an Attorney can act once the LPA is registered, even if the donor still has capacity. At the request of the Donor, the Attorney can assist in doing those things the Donor no longer wishes or is able physically to attend to.

A Health and Welfare LPA authorises the appointed Attorney to make decisions relating to the donor’s personal wellbeing. The decisions the Attorney will be able to make include – but are not limited to – consenting to or refusing medical examinations and/or life sustaining treatment, and where the donor should live, whether this be at home or with community care assistance. This type of LPA is only effective when the donor does not have capacity.

What happens if I lose capacity and I have not made a Lasting Power of Attorney? All is not lost. Someone, commonly a spouse or child (although could be anyone), will need to apply to the Court of Protection for a Deputyship Order in order to make decisions on your behalf. This type of application is significantly costlier and lengthier than appointing an Attorney through an LPA. It also means that you will have no control over who is appointed to deal with your affairs.

After a protracted application process, a Judge will determine the success of a proposed Deputy’s suitability to act.

The role of a Deputy is more onerous and consuming and there is more scrutiny placed on a Deputy than on an Attorney. A financial Deputy is expected to complete annual accounts which will document what decisions have been made and why. Good clear records of all expenditure are necessary and all receipts and statements must be retained.

Under an LPA, an Attorney must follow instructions/limitations that you have included in the Lasting Power of Attorney, if any. For example, it is possible to specify that your Attorney may not sell your home or may not make customary gifts on your behalf.

Deputies, on the contrary, must act within the powers afforded to them by the Court. Express powers to manage finances and make reasonable gifts are necessary. A further specific application to the Court of Protection may be required to sell your home, at greater expense.

Fees for setting up and registering a Lasting Power of Attorney are substantially less than for making an application for a Deputyship order. For example, our current charges for preparing and registering LPAs are £300 plus vat for the one type and £400 plus vat for both types if done at the same time, plus the registration fee of £82 per LPA.

The range of fees for a Property and Finances Deputyship application is between £900.00 plus vat and £2,000.00 plus vat, if uncontested, plus a court fee of £365.00. In addition, there are other costs for this type of application. These include a fee for a Medical Practitioner to complete the form evidencing mental capacity which is commonly £50.00 to £250.00, and an annual fee depending on size of estate (security bond). If the application is contested, there will be Hearings, Barrister and additional Solicitor fees.

Health and Welfare Deputyship applications will generally incur greater fees.