Too many people are finding out about LPAs when it is too late – but Deputyship might be the answer

For many years now, anyone mentally capable of creating a Lasting Power of Attorney (LPA) has had the option to create two types. One is over financial matters and the other is over ‘Health and Welfare’ decisions, but, did you know you can only draft an LPA if you are of sound mind – and what do you do if it’s too late?

We’re getting a high number of enquiries at the moment about LPAs. Since the pandemic, more people have been forced into thinking about some of life’s necessities – like what will happen to you, your home or your children’s inheritance if you were no longer here.

While many invested in writing their will, we also saw lots of people asking about who would pay their bills if they were suddenly unable to do so themselves.

The short answer is, without an LPA, no one can – and many people are finding out too late.

Should you act now?

If someone has become mentally incapable of creating LPAs then the only option is to apply to the Court of Protection for what is termed a ‘Deputyship’. The application is made by the people willing to be appointed to manage the financial affairs of the incapable person.

A very high proportion of applicants for a financial Deputyship will be successful and the court will likely appoint family members or sometimes a solicitor as a professional Deputy. However, it should never be regarded as a given but the likelihood of success is high.

In marked contrast to financial applications, it has for many years been very difficult to be successful in a welfare Deputyship application. Many families find this upsetting and very worrying as they are not consulted in the decision-making process as is required in The Mental Capacity Act (MCA) and supporting Code of Practice.

A change in approach

It appears that the Court of Protection may have changed its approach to such applications recently.  It has not done so, however to the extent of making welfare Deputyships as straightforward to obtain as their financial equivalent.

Any potential applicants for a welfare Deputyship should be very aware from the outset of the limited chances of success, in what sorts of circumstances the Court is more likely to look favourably on an application, and what information the Court must see to increase the chances of success. Very often it is sensible to involve a barrister from the outset to advise on the best way to proceed, and to represent the family at any Court of Protection hearing.

It therefore remains the case, as it has been since the MCA came in to effect on 1st October 2007, that the Court is very reluctant to give an applying Deputy broad and general authority over the incapable person’s health and welfare.

What is more likely to succeed is an application to deal with a specific issue or where a specific decision needs to be made, always in the incapable person’s best interests. The Court is also more likely to consider an application that shows a series of linked decisions will need to be made over time, and that it would be in the incapable person’s best interests for there be consistency and continuity by having the same person making them.

Acting in best interests

In every application, it is pivotal to demonstrate that the applicants are acting entirely in the incapable person’s best interests and that the order the Court is being asked to make will further those interests. This is very much evidenced based and must take into account the Court of Protection reported judgments and guidance issued in relation to welfare applications.

Equally, applicants will need to involve every other agency involved in the incapable person’s care. There can often be many such parties: Social Services; social workers; doctors; residential or education authorities; and more. The Court will want to see that all such bodies are aware of what is being proposed and it would be unwise to start an application without the approval of such bodies. An objection or challenge from any one could easily make the application unsuccessful.

It seems fair to say that the Court’s recent change of approach is perhaps no more than to make it clear that there is no longer a presumption against appointing welfare Deputies. While that is significant and welcome it remains the case that anyone wanting to apply for a welfare order needs to think carefully about what they are asking for, and how to show the Court why the incapable person’s interest is at the heart of the application.

Things to consider

Families should also be aware that welfare applications can be very costly and take many months to deal with. These costs must be paid for by the applicant/family unless or until the Court of Protection Order otherwise. Very often the Court will involve the Official Solicitor. The general rule is that there is no Order for costs in welfare applications. This is another prohibitive factor for many families in making any welfare application to the Court. It is important to take specialist advice on these critical issues.

If you would like some more advice about LPAs, contact the Private Client team at Downs Solicitors to see how we can help.