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In recent times, we have seen an increase in applications to the Court of Protection for a Deputyship Order.
A Deputyship Order may be required when a person has not made a Lasting Power of Attorney (“LPA”) and their ability to deal with their own affairs, due to mental incapacity, has become an unanticipated issue.
We would all hope that our health, mental or physical, will not fail us but realistically speaking we cannot predict what is going to happen to us in the future. Putting an LPA in place now would give you peace of mind knowing that if you do need assistance in the future at least you have had some control in the decision as to who may provide that for you.
If you have not appointed attorneys and your mental health deteriorates to a point where you can no longer deal with your own affairs, the Court of Protection will appoint a deputy to look after your affairs and this will not necessarily be someone you would have chosen.
Having an LPA for Financial Decisions means that your attorneys can assist you both when you have and do not mental health issues but are just finding it difficult to cope, or are not physically able to cope. It does not mean that you no longer have a say in your affairs. This would only happen if your mental health failed to a point where you could no longer make decisions for yourself.
There is also an LPA for Health and Welfare. Your attorneys appointed in this document can only use it when you no longer have mental capacity. It could be considered as a way of planning for your personal care in case you are unable to make decisions for yourself in the future.
It also important to note that if you own a property jointly with someone else, your Court appointed Deputy does not have the right to sell your share on your behalf. It would involve a separate application to the Court asking them to appoint someone as your trustee to sell on your behalf. This would mean a further court fee and further legal costs. An attorney using an LPA for property and financial affairs would not have these problems.
You are able to make an LPA at any time provided you are over 18 and have the mental capacity to understand the notion of appointing an attorney and what powers you are giving them. Mental capacity is the ability to make a specific decision at the time that it needs to be made.
An application to the Court of Protection is only made when it is apparent that you need help and have no attorney in place. This could mean a delay of 6 months or more before the Court Order is issued and the deputy can assist you.
You, hopefully, will never actually need any assistance but if you view the LPA as, say, an insurance policy in the sense that, the LPA(s) may never be required, but you will be glad you had them in place if you ever did need them.
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