Finance and Property

Finance and Property/ Lasting Powers of Attorney

 

Aside from making decisions regarding the health and welfare of a person without mental capacity, it is also necessary to consider the person that will be responsible for financial or property decisions. In this area, legal aid is not available and funding will be on a private basis only.

 

At Duncan Lewis Solicitors, we offer competitive funding arrangements and can make individual payment plans for your convenience. Please contact us, and we will provide a quick fee quotation upon request.

 

Deputyship – for after someone no longer has capacity

 

As a deputy, you’ll be authorised by the Court of Protection to make decisions for “P” on their behalf. There are 2 types of deputy:

 

1. Property and financial affairs, for example paying bills, organising a pension
2. Personal welfare, for example: making decisions about medical treatment and how someone is looked after.

 

To be a deputy the person needs to be 18 or over. Deputies are usually close relatives or friends of the person who needs help making decisions. If you want to become a property and affairs deputy, the person will need to have the skills to make financial decisions for someone else. The court can appoint 2 or more deputies for the same person.

 

When the Deputy is making a decision, they must:

 

• make sure it’s in the other person’s best interests
• consider what they’ve done in the past
• apply a high standard of care - this might mean involving other people, for example getting advice from relatives and professionals like doctors
• do everything they can to help the other person understand the decision, for example explain what’s going to happen with the help of pictures or sign language

 

To apply: https://www.gov.uk/become-deputy/apply-.deputy (or Instruct a Solicitor)

 

• £400 application fee
• £500 if the court decides your case needs a hearing

 

After the Deputy has been appointed an annual supervision fee depending on what level of supervision that particular deputyship needs.

 

We would recommend instructing a Solicitor in cases such as the above, because if a Deputyship appointment is disputed a hearing at the Court of Protection may be required.

 

Lasting Power of Attorney- An advanced decision, which can be made before you lose capacity

 

A lasting power of attorney (LPA) is a legal document that lets you (the ‘donor’) appoint one or more people (known as ‘attorneys’) to help you make decisions or to make decisions on your behalf.

 

This gives you more control over what happens to you if, for example, you have an accident or an illness and can’t make decisions at the time they need to be made (you ‘lack mental capacity’).

 

The forms to make a LPA application can be found at: https://www.gov.uk/power-of-attorney/overview

 

Although it is possible to make a LPA independently, we would recommend instructing a Solicitor in cases such as the above, because a LPA can be challenged and if drafted incorrectly can be held as invalid.

 

There are 2 types of LPA:

 

Health and Welfare

 

A Health and Welfare Lasting Power of Attorney (LPA) gives one or more trusted persons the legal power to make decisions about your health and welfare if you lose capacity. The person who grants power is known as the ‘Donor’ and the person appointed to make decisions is the ‘Attorney’.

 

Your Attorney can make decisions about anything to do with your health and welfare such as:

 

• refusing medical treatment
• where you are cared for and the type of care you receive
• day-to-day things like your diet, dress and daily routine
• Property and Financial Affairs

 

A Lasting Power of Attorney for Property and Financial Affairs gives the attorney the power and authority to make decisions about money and property for you, for example:

 

• managing a bank or building society account
• paying bills
• collecting benefits or a pension
• selling your home

 

Case Example

 

Deputyship

 

• “P” has Alzheimer’s disease, and is now in a care home and without capacity.
• “P”’s daughter would like to sell “P”’s home to pay for care home costs, and to ensure “P” has funds to make her life comfortable.
• “P”’s son objects to his sister controlling his mother’s finances.
• “P” asks Duncan Lewis Solicitors for assistance.
• We apply to the Court of Protection for a Deputyship order. Putting forward the best reasons why “P”’s daughter is the most appropriate person i.e. she lives locally, and her brother lives in America.
• We instruct a relevant expert to assess “P”’s capacity, and experienced Counsel to support the Client’s case.
• Proceedings end, and the Judge makes the appointment considered to be most appropriate.

 

Lasting Power Of Attorney

 

• A and B are a married couple.
• A had a heart attack earlier in the year, and the couple want to ensure that B is responsible for all his health and finance decisions.
• B would like to nominate her daughter as her own Attorney.
• Duncan Lewis take all the clients’ details, and draft the complex forms for A and B.
• There is some dispute about A’s capacity at present, so they make an appointment with the appropriate expert to assess this.
• Duncan Lewis also informs all the family members, to ensure everyone is aware of the situation.
• At the end of the matter, Duncan Lewis files both LPAs at the Office of the Public Guardian.