A Lasting Power of Attorney (LPA) is a legal document that gives a trusted relative or friend the authority to manage your affairs for you, should you ever lose mental capacity. We look at what happens if someone cannot make their own decisions but does not have an LPA.
There are two main types of LPA, one that deals with property and financial matters and one that covers health and welfare. This article looks at the first type and the complications family members will face if someone loses capacity without first putting an LPA in place.
Accessing bank accounts
Accessing someone’s sole bank account is unlawful, and once the bank is aware that an individual no longer has capacity, the account will be frozen. This means that relatives will not be able to help the individual by dealing with financial matters on their behalf, such as paying bills.
If the account is a joint account, it can also be frozen to protect the individual’s funds. The bank may allow some payments, for example, care home fees or utility bills, but it will still be necessary to obtain legal authority to enable money to be dealt with freely.
In both of these cases, where someone does not have an LPA, it will be necessary to apply to the Court of Protection for a guardianship order. This will allow a representative to deal with specified matters on behalf of the individual.
Receiving benefits
If the only issue that needs to be managed for someone is the receipt of benefits, you can consider applying to become a Department for Work and Pensions (DWP) appointee. This will authorise you to claim benefits on behalf of someone who has lost the ability to manage their own affairs and also to arrange for payments from these funds.
Even if you become a DWP appointee, you will not be authorised to deal with any other financial matters for the individual.
Other matters
Other issues, such as dealing with investments, arranging care or insuring and otherwise managing someone’s assets will all require legal authority. Again, this is done by applying for a guardianship order.
Obtaining authority to manage someone’s finances
If an individual does not have a property and financial affairs LPA, then an application can be made to become their deputy. This requires an order from the Court of Protection, which is a specialist court that makes rulings on financial and personal welfare issues for individuals who cannot manage their own affairs.
It is usual for a close family member to make the application to become a deputy. It needs to be someone with the time and ability to manage matters for the patient.
The application requires the submission of several forms and a mental capacity assessment, which needs to be supplied by a professional. It is also necessary to send a copy of the application to the patient and to three people in their life prior to making the application. This is usually three close family members, but if there is no-one suitable, it can be other individuals, such as their GP or social worker.
The court will take several months to process the application. If there are any complications or the court has questions to be answered, it may take as long as a year before a deputyship order is issued.
It is far preferable for someone to put an LPA in place. As well as being quicker and more cost-effective, this will allow the individual to choose who they want to represent them, ensure the authority is in place before it is needed, and reduce the ongoing supervision requirement.
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