Ensure your finances are managed if you are unable to
It is wrongly assumed that if your spouse or even your long term partner needs to step in and act on your behalf that their status of being your spouse or long term partner gives them a legal right to do so. It does not.
Without a lasting power of attorney being in place the court of protection is the only court that can grant a legal right to an applicant to act on behalf of a person.
A judge would have to consider the application to act on a person’s behalf and this legal right is not given easily.
The judge may consider why the person who cannot act on their own behalf didn’t give permission through an LPA when they had mental capacity to the person who is seeking the legal right now.
If the judge does grant the legal right, the judge may put certain conditions on the judgement that could include submitting detailed accounts or needing to take out special insurance that protects against fraud and dishonesty.
This legal right is called a “Deputyship” and is not only expensive to obtain, but can take a substantial amount of time as well.
There are two LPA’s, one for financial decisions and the other for care decisions.
Having a lasting power of attorney either for financial decisions or care decisions avoids the need for the person who you would want to make decisions on your behalf having to go to the lengthy and expensive process of applying to the courts to get permission from a judge.
Instead, the LPA’s can be agreed, prepared, signed and ready to be registered if and when needed.
Some people decide to register the LPA’s as soon as they are created and not wait until the person making the LPA’s (called a “Donor”) loses mental capacity.
This can save time as even with a completed but unregistered LPA, it does take several weeks for the registration process to complete.
We consider that having LPA’s created at the same time as having your will drafted makes perfect sense as it provides much needed comfort knowing that if you ever needed help to make financial or care decisions now or in the future that you have appointed the right people (called your attorney’s) and that these legal documents can be registered and used without the need to apply to the courts.
It is worth noting that you are only able to make LPA’s if you are deemed to have full mental capacity, so if you wait until you or someone else thinks you are losing or have lost capacity then you have waited too long and you will not be able to create an LPA and only have the court and deputyship option left open.