If an individual loses the capacity to manage their own affairs and make important decisions and they have not legally appointed someone to act as their attorney, it may be necessary to apply to the Court of Protection for a deputyship order. When someone...
There may come a time when you no longer wish, or are no longer able, to act for yourself. A registered Lasting Power of Attorney is a legal document that allows your chosen attorney to act on your behalf and make decisions for you.
The inability to act for yourself may not necessarily be due to dementia or another mental health illness but could perhaps be the result of a stroke or accident.
You must choose your attorney carefully because they will be making important decisions about your welfare or financial and property affairs that you would normally have made yourself. You can appoint more than one person and, if you wish to, you can limit the extent of their power by placing restrictions and conditions when the Lasting Power of Attorney is prepared. When a Lasting Power of Attorney application is prepared you are asked if you wish anyone to be notified before it is registered. This gives people who know you well an opportunity to raise any concerns or objections.
You are not required to register a Lasting Power of Attorney immediately but it cannot be used until it is registered and it can take between ten and twelve weeks for the application to be finalised. We therefore always strongly advise that Lasting Powers of Attorney are registered as soon as possible so that they can be used immediately, if necessary.
We also offer an Attorney Support Service to guide and support attorneys in their role.
What is a Health and Welfare Lasting Power of Attorney?
This can only be used when it has been registered and the donor has lost mental capacity. Your attorney will make decisions about such things as where you live and your day-to-day and long- term are. When your Lasting Power of Attorney is prepared, you must decide whether to give your attorney the authority to accept or refuse life sustaining treatment on your behalf.
What is a Property and Financial Affairs Lasting Power of Attorney?
This could include buying and selling property, operating bank accounts, making investments and paying bills. Unlike the Health and Welfare Lasting Power of Attorney, this can be used before the donor loses mental capacity as long as it has been registered. We would recommend that your Lasting Power of Attorney is safely stored with your Will until it is required.
Can someone with dementia make a Lasting Power of Attorney?
It depends. Even if someone has been diagnosed with dementia it doesn’t mean that they are no longer capable of creating a Lasting Power of Attorney. To create a legally binding Lasting Power of Attorney the most important aspect is that the person creating it must understand what they are signing and the implications of creating such a document. We are experienced in assessing if someone has capacity to create a Lasting Power of Attorney and can discuss this further with you.
If it is not possible to create a Lasting Power of Attorney you can apply to the Court of Protection to be a Deputy which is a costly and extremely lengthy process. For that reason it is advisable to have a Lasting Power of Attorney registered and in place whilst the donor still has the mental capacity to do so.
However, if a Court of Protection application is the only option we can advise on and prepare the application on your behalf.
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