With an ageing population, it is increasingly important to raise awareness that thought needs to be given to how and who you would want to manage your affairs in the future to ensure your wishes are considered should you lose capacity to do so yourself.
I regularly receive calls from individuals explaining that their loved one has been suffering from memory loss for several years, and a Dr has now told them that they lack capacity to manage their property and affairs.
As such, they find they need something formal to help them to continue assisting their loved one, as they have been for years, to look after their affairs as they do not have authority to do this. I am asked to help them obtain a Lasting Power of Attorney (LPA) for that loved one so that they can legally help with paying bills, sell a home to pay for care fees, or even negotiate with the care home over costs.
This then prompts a discussion about capacity, and we are forced to explain that where we have been told that the loved one has been assessed as lacking capacity to manage their property and affairs, we have passed the point where an LPA can be entered into by that person. In order to enter into an LPA, the Donor (the party who the LPA relates to) has to understand the authority they are giving to the Donee (the proposed attorney) and the consequences of making the LPA. Where someone is assessed as lacking capacity to make decisions about their money, they are unlikely to be able to satisfy this test as they may not be able to retain or weigh up the information in order to arrive at the decision to make the LPA.
The only alternative to get the authority they seek is a potentially lengthy, and somewhat more expensive application to the Court of Protection for the appointment of a Deputy. The Court are then the deciding body on who is the most appropriate person to act in the circumstances. I often hear the dismay in the callers voice when they realise that the opportunity has been missed for their mum or dad to make the decision themselves, even where it is so clear to them this is what they want as they have regularly been providing support in this way for years whilst the individual had capacity.
The application to appoint a Deputy can be straight forward where there is a clearly agreed family member to take up the role. However, it can become more difficult where there is dispute perhaps between siblings as to who is an appropriate Deputy, or where there is nobody willing or able to act. The Court will be guided by the evidence before them, including any evidence to suggest the individual’s wishes and feelings. However, in these circumstances, the Court could take the view that an independent deputy is in the individual’s best interests. The OPG have a panel of approved Deputies to step in and act as “Deputy of last resort” and take on this independent role. At Shoosmiths, we have 2 Panel Deputies, Charlotte Dunn and Sue Bowler.
The Court of Protection is a standalone specialist Court overseeing the affairs of the most vulnerable in our society. It is this Court that an application is made to for the appointment of a Deputy, and to whom any Deputy is answerable to for their actions. The Court’s supervisory body, The Office of the Public Guardian (OPG), launched their “your voice, your decision” campaign in 2019 with a view to highlighting the common misconception that a loved one does not automatically have authority to manage your affairs. They have more recently launched a campaign in conjunction with the Ministry of Justice to modernise the way that LPAs can be used, modernising the approach and making these more accessible online. This should make the process of making, registering and using an LPA simpler.
In our first episode of The COPCast we explore the concept of thoughts wishes and feelings, and the importance of making these known when you have the capacity to do so. We touched upon the OPG’s campaign and how the message now is that LPAs should be viewed like driving licences, suggesting that everyone should have one as without, there will be no one with legal authority to manage your affairs should you lose capacity. There is a general understanding and acceptance that we should prepare for the future by making a will to set out how we wish our estate and our funeral to be dealt with when we pass away. There is currently much less acknowledgement that we need to plan for the legal management of our affairs should something happen in our lives to change our capacity to do so ourselves.
This is the time to take control of those uncertainties by setting out your thoughts, wishes and feelings now by making or reviewing an existing LPA to ensure it still fits with your circumstances. It is also important to highlight that both LPAs and wills should be viewed as working documents, and they should be revisited throughout your life so that they are an up to date reflection of your wishes.