Who is empowered to take care of the affairs of someone with disabilities if they need this kind of support? Langley Wellington solicitor, Nicole Boon, has authored this information for us. If you need help to with this issue, please get in touch
What is a Legal Power of Attorney?
Lasting Powers of Attorneys (‘LPA’) are documents that allow you to formally appoint one or a couple of trusted family members or friends (known as your ‘Attorneys’) to look after your finances or make health decisions on your behalf if you are unable to. There are two types of documents, one covering Finance and Property, and one covering Health and Welfare.
The Finance and Property document allows your Attorneys to manage your finances, pay any bills and buy or sell property on your behalf, should you not be able to. The Health and Welfare document allows your Attorneys to liaise with doctors on your behalf regarding medical matters. It allows your Attorneys to discuss your long-term care needs with any relevant authority. You also have the option to grant your Attorneys the authority to make decisions on life-sustaining treatment, which can include (but is not limited to) being kept artificially alive, cancer treatment, or being resuscitated. You can also remove any authority for your Attorneys to make these decisions if you wish.
Who can be an Attorney?
An Attorney can be anyone from a family member to a close family friend, but they must be someone that you trust, as well as other legal requirements. If there are no family members or close friends able to act for you, the Partners of Langley Wellington LLP can act as Attorney.
LPAs can only be made by the person requiring the Lasting Power of Attorney (the ‘Donor), if they are deemed to have full mental capacity. If there are any doubts about capacity, a Mental Capacity Assessment may be requested, to ensure that the Donor is able to sign the documents and put LPA’s in place. This will ensure that there is no doubt about capacity for the Certificate Provider, who is also required to sign the LPA’s to certify that the Donor has capacity.
If the Donor does not have mental capacity, and therefore, cannot take out LPAs, a Deputyship Order can be applied for, by either family members or friends.
What is a Deputyship Order?
A Deputyship Order is an order awarded by the Court of Protection to deal with someone’s finances or health matters. The purpose of this order is to have someone, or a couple of people, (known as ‘Deputies’), appointed by the Court of Protection to manage someone’s affairs should they not have, or have already lost mental capacity. Due to the nature of the order, the applicant will need to complete a lengthy application, which will be assessed by the Court of Protection, to ensure that they are the correct person or people for caring for someone’s finances. It will also take several months to implement, and will require an insurance policy to be taken out, to protect that person’s finances further, should there be any misappropriation of funds.
The role of a Deputy is more stringent than that of an Attorney, as there are yearly reporting procedures and the Court of Protection will assess your ability to act as a Deputy, based on the application form submitted and during the ongoing reporting procedures. Any payment made on behalf of the person who has lost capacity will need to be accounted for, and justification for the payment will be required, if the Court of Protection deems it necessary. A Deputy acts in very much the same way as an Attorney, but a Deputy can be appointed for a child who is under the age of 18.
In respect of health matters, whilst there is a Deputyship Order for health matters, these are less common, as care of the Donor is often best delivered collaboratively, rather than by one person solely deciding on a person’s care. This is very common in cases where someone is applying to be a Deputy for a younger child.
How we can help
Whatever your requirements, we are able to assist you through the process and provide you with the advice and guidance required. Please call Nicole Boon, one of our Private Client Solicitors, on 01452 521 286 or email her at email@example.com for more information.
Nicole is a Solicitor within our Private Client Department, having completed her Training Contract with us in August 2019. Prior to joining our firm in July 2017, Nicole undertook her university education at both Aberystwyth University and Cardiff University and worked in Trust and Estate Administration for two years.
Since joining our firm, Nicole has expanded her knowledge and skills and is now able to advise in most areas of Private Client work, including Estate Administration, Will drafting, Lasting Powers of Attorney and Deputyship Orders.