Secure your finances and your future care

Caring for someone who has lost the mental capacity to make decisions for themselves can be incredibly stressful. Emma Pringle, Senior Associate Solicitor at Cartmell Shepherd, explains why planning ahead can make things much easier for you and your family.

None of us particularly wants to think about a time when an accident, illness or condition might leave us unable to make important decisions for ourselves.

But it can happen, and putting plans in place while you are fit and well can provide valuable peace of mind for you and those closest to you.

What is a Lasting Power of Attorney?

Many people will have heard of a Lasting Power of Attorney (LPA).

An LPA allows you, while you have the mental capacity to do so, to choose people you trust to make certain decisions on your behalf if you are unable to make those decisions yourself in the future.

There are two types:

• Property and financial affairs LPA – covering matters such as managing money, paying bills and dealing with property.
• Health and welfare LPA – covering decisions relating to areas such as your care and medical treatment.

Putting LPAs in place means you choose who you trust to make those important decisions.

What happens if there is no LPA?

If someone has already lost the mental capacity to make the relevant decisions, it is too late for them to make an LPA.

This is where Deputyship may be required.

A Deputy is appointed by the Court of Protection and is authorised to make certain decisions on behalf of someone who lacks mental capacity.

Someone may lack capacity to make particular decisions for a number of reasons, including:

• dementia;
• a serious brain injury or illness; or
• severe learning disabilities.

If appropriate arrangements aren’t already in place, a relative or someone close to the individual may need to apply to the Court of Protection to become a Deputy.

Why planning ahead matters

I always encourage people to consider putting LPAs in place sooner rather than later.

Unfortunately, families can find themselves dealing with extremely difficult practical issues if a loved one suddenly loses capacity without an LPA.

For example, a family may make the difficult decision that their mum, who has dementia, can no longer live independently and needs to move into a nursing home.

If she no longer has the capacity to manage her financial affairs and hasn’t appointed Attorneys under an LPA, her family may not have the legal authority to deal with important financial matters, such as selling her home.

They may then need to make an application to the Court of Protection before they can move forward.

At an already emotional time, this can create additional worry and uncertainty.

What does a Deputy do?

There are two types of Deputyship: property and financial affairs and personal welfare.

Depending on the authority given by the Court, a property and financial affairs Deputy may deal with matters such as:

• paying bills;
• managing money;
• organising pensions; and
• dealing with property and other financial matters.

A personal welfare Deputy may be authorised to make certain decisions relating to someone’s care or medical treatment.

Personal welfare Deputyships are less common, but may be considered where, for example, there is disagreement about what is in someone’s best interests or authority is needed to make particular decisions over a period of time.

The Court order will set out exactly what a Deputy is authorised to do.

LPA or Deputyship: what’s the difference?

The key difference is when the arrangements are made and who gets to choose.

With an LPA:

• you put it in place while you have the required mental capacity;
• you choose who you want to act for you;
• you can plan ahead before help is actually needed; and
• this is significantly less expensive and time consuming than a Deputyship Order.

With Deputyship:

• the person already lacks capacity to make the relevant decisions;
• an application has to be made to the Court of Protection;
• the Court decides who is appointed and what decisions they are authorised to make; and
• the Court can appoint the Local Authority to access your bank accounts and manage your finances – although most people wish to avoid this.

That’s why planning ahead can be so valuable.

Give yourself and your family peace of mind

Talking about a time when you might no longer be able to make decisions for yourself isn’t easy.

But putting an LPA in place isn’t about expecting something to go wrong. It’s about making sure you’re prepared if it does.

By planning ahead, you can have a say in who you trust to manage important aspects of your life and potentially make things much easier for your family at what could otherwise be a very difficult time.

Different arrangements apply in Scotland and Northern Ireland. Court of Protection Deputyships apply in England and Wales.

How we can help

We understand that conversations about mental capacity, finances and future care can be emotional.

Our experienced team can provide clear, practical and sensitive advice, whether you’re considering putting an LPA in place or need guidance about making an application to the Court of Protection.

We can also arrange a home visit where appropriate.

If you would like an initial chat, please contact Emma or our Wills, Probate and Inheritance team on 01228 516666 or email enquiries@cartmells.co.uk.