We routinely act for clients who have elderly relatives who have lost the capacity to manage their own finances and that relative now needs someone to be appointed to look after their finances on their behalf. This situation occurs where that elderly relative has not made either an Enduring Power of Attorney or a Lasting Power of Attorney.
This normally comes to light when the elderly relative has been admitted into or is about to be admitted into a residential or nursing home.
The simplest solution to avoid this problem is for everybody to make their own lasting power of attorney appointing a person or persons of their choice to manage their finances should they at a future date lack the capacity to do so themselves.
However, a good deal of people often leave it too late to do this. In these circumstances an application needs to be made to the Court of Protection to appoint what is called a deputy to manage finances on that person’s behalf. A deputy is, to all intents and purposes, the same as an attorney but is a person appointed by the Court to manage the person’s property and affairs as opposed to that person choosing who they would want to act in this way themselves. It is often the case, however, that the person making the application to the Court would be the same person the elderly would have chosen when they were able to do so.
The Court of Protection and the deputyship regime is not quite the horrific ordeal it is made out to be in certain newspaper articles that have been prevalent over the last 2 or 3 years. However, it is certainly the more difficult option and is definitely a more expensive option than a person making a lasting power of attorney in advance. It is also a fairly lengthy process which, although it is possible for a lay person to make the application themselves, usually requires more specialist legal advice.
In the second part of this article which will follow in our next newsletter, we will look at the application process itself and the likely cost and timescale involved, as well as other more technical applications to the Court, including Statutory Wills and contested deputyship and lasting power of attorney applications.Find out more about our Court of Protection department