Court of Protection:
What happens without a Lasting Power of Attorney?
So, we tell you all the time how important WE think it is to have an LPA in place and it is never too early (once you’ve hit 18 of course!) to get one in place, BUT WHY?
Well, put simply if you don’t have a Lasting Power of Attorney in place and you lose capacity or are unable to make decisions for yourself (whether temporarily or on a more permanent basis) then you will need to have a Deputy appointed by the Court…as you can imagine, this is not a quick process nor is it cheap!
So, let’s take a look at exactly what is involved in obtaining a Deputyship Order, what it means and how you can ensure you are covered.
Just in case you have missed our other articles on Lasting Powers of Attorney (LPAs); there are two types of LPA, one to cover your property and financial affairs and another that will cover your health and welfare decisions. An LPA can only be put in place by you when you have capacity to do so to allow someone to act for you, step into your shoes if you like, when you are unable to do so. The property and financial LPA can be used by your Attorney (if you want them to) at any time after it has been registered, not just when you lose capacity!
However, what happens when you haven’t yet got around to putting an LPA in place and you lose capacity?
Well let’s take a look at what happens to your property and financial affairs first…
An application will need to be made to the Court of Protection to appoint a Deputy to look after and manage your finances and property, once you have lost capacity and are unable to do so, BUT…
Once you have lost capacity, you also lose the THE CHOICE of who you want to handle your property and financial affairs.
Once you have lost capacity, it is for the Court of Protection to decide who is best to handle your affairs for you…this may not be the person that you would have appointed.
The Court of Protection will choose a Deputy that they think is suitable to manage your affairs and although your past and present feelings may be taken into consideration this is difficult once capacity is lost.
It will be down to your loved one’s to apply to the Court of Protection for the Deputyship Order and this can be a huge burden that you wouldn’t want anyone to endure, let alone those closest to you.
The list of those eligible to apply for a Deputyship Order is quite extensive and includes one of your relatives, a close friend, a professional or anyone that has an interest in you and your affairs. However…this doesn’t change the fact that you have no control over this and that you are leaving it up to one of your loved one’s to make the application and for the Court to decide whether they are deemed suitable to act as your Deputy.
The power that the Court appointed Deputy has will be limited to what is stated within the Deputyship Order. This may not be as far reaching as an LPA would allow and so it may well be necessary to return to Court to have this extended.
An LPA allows you to set out any restrictions, preferences and guidance that you want to leave for your appointed Attorneys, you will be unable to do so in a Deputyship Order.
To make the application to the Court of Protection, a fee of £385 (current rate in 2019) is also payable to the Court.
This does not include any legal fees and so if you seek legal advice or assistance in completing and submitting application, this will be an additional cost.
There may also be fees that are payable to the professional that has to verify that you no longer have capacity and thus require a Deputy to be appointed.
In addition to this, there are annual fees payable to the Court of Protection for Deputyship Orders.
As you can imagine, some of the decisions in relation to your financial affairs are pretty time sensitive. However, an application for a Deputyship Order usually takes 3-4 months to be made, from the date that the application is submitted. This is where there are no objections to the application, this can be much longer, and very different, if any objections are raised.
Where objections are raised and the matter has to be heard before a Judge, the process can take nine months or longer to conclude
For Health and Welfare matters, things are a bit more complex.
If you have not made an LPA in relation to your Health and Welfare prior to losing capacity then it is quite rare for the Court of Protection to appoint a Deputy for you in relation to these matters.
An application can be made, again to the Court of Protection, in much the same way as it is made for a Deputyship Order in relation to your property and financial affairs but are usually only appointed in complex circumstances.
Again, meaning that you lose the control and choice to appoint who you want to be able to make those decisions on your behalf and also lose the ability to put preferences and guidance in place for your Attorneys to take the decisions that you would have made had you been able, and had the capacity, to do so.
Let’s take a brief look at the process for applying for a Deputyship Order for those situations where an LPA hasn’t been registered prior to losing capacity.
We briefly mentioned (above) that the list of those that are eligible to make the application for a Deputyship Order is quite extensive, but in order to be successful, the applicant will need to show that they have a good knowledge of your finances and property affairs and will also have to demonstrate, with verification from a professional, that you no longer have capacity to make decisions in relation to your own financial and property matters.
Upon making the application to the Court of Protection a Court Fee of £385 Present 2019 rate) is also payable, whether successful or not. An additional fee may be charged by the professional that verifies your capacity. If the applicant seeks legal advice and assistance in completing and submitting the application to the Court of Protection, this will incur additional fees.
There are also ongoing fees, paid annually, to the Court of Protection in relation to Deputyship Orders that are made.
The application will then be accepted and issued by the Court of Protection and the applicant will need to serve a copy of the application on all those that they believe have an interest in the application being made and those directed by the Court and within the Court Guidance (known as the Respondents).
The Respondents are then given an opportunity to respond to the application.
If no objections are received to the application from any of the Respondents then the Court of Protection will make a Deputyship Order and this is usually done within four months of the application being submitted.
However, if any objections are received then a Hearing will be listed in front of a Judge to consider the matter and the objections. This will not only delay the Deputyship Order being made but will also increase costs as it is likely that legal representation and advice will be required. The time and expense will differ depending on the number of parties involved and the number, nature and complexity of the objections.
If you have any questions please do not hesitate to get in touch for a FREE consultation.
If you would like a FREE chat to discuss your options, get in touch on info@TotalLegacyCare.co.uk or 01727 865 121
Have a Question or
want to book a