What are the consequences of not having a lasting power of attorney

What are the consequences of not having a property and financial affairs lasting power of attorney (LPA) if you suffer from some infirmity? If it is a physical infirmity then it is not too late to make an LPA. Unfortunately the LPA cannot be used by your attorney until it has been registered with the Court of Protection. Registration will take approximately 8 weeks and so your attorney would not be able to act under the LPA during this period. You could make an ordinary power of attorney appointing someone to act on your behalf in relation to your financial affairs. An ordinary power of attorney is a simple document that is immediately valid but unfortunately it ceases to be valid if you subsequently lose mental capacity. You could also make a third party mandate. That is you could indicate to your bank or building society that you are content for there to be another signatory on your account. Again this third party mandate would end if you lose mental capacity. A general power of attorney and a third party mandate are only short term measures but will help you until you have your lasting power of attorney registered.

If you suffer from a mental incapacity then the situation is more complicated. You will not be able to make an LPA, general power of attorney or third party mandate whilst the incapacity lasts. As a result it may not be possible to pay for your care. If the incapacity is likely to be permanent then the only way your funds can be accessed is with an order from the Court of Protection appointing someone to act on your behalf as your Deputy.

You do not choose your Deputy whereas if you had made an LPA you would have chosen your attorney. Your Deputy can be a family member, a friend, a solicitor or other professional advisor or on some occasions someone chosen by the Court of Protection.

The application to the Court of Protection for the appointment of a Deputy is only the beginning of a longer process: if someone becomes your Deputy then there are continuing tasks and responsibilities that they will be expected to carry out in the future.

The application process involves providing the Court of Protection with detailed information regarding your circumstances and finances. The Court of Protection will assess the suitability of the Deputy from the information provided. The application process can be quite lengthy. For a simple application it can take up to 16 weeks. In more complex cases it can take a lot longer.

A Deputy will have to arrange a security bond with an insurer. The Court of Protection requires all Deputies to do this to financially protect the person they are acting for. The person they are looking after will have to pay a yearly fee for the bond.

The Office of the Public Guardian will supervise the Deputy after the order is made. A supervision fee must be paid annually.

These ongoing fees mean that having a Deputy to act for you can be a lot more expensive than appointing an attorney. The process takes a lot longer. Contact Dixon Stewart on enquiry@dixonstewart.com if you need any help with making a lasting power of attorney or a deputyship application.

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