Managing the affairs of someone who has lost mental capacity
If your loved one has lost mental capacity, they will need assistance with their finances.
Where they have already prepared a registered Property and Financial Affairs Lasting Power of Attorney (or an old Enduring Power of Attorney), their attorneys will have the legal authority to deal with their finances.
If there is no power of attorney in place, you may need to apply to the Court of Protection to become a property and financial affairs deputy.
How can Timbrell Law help?
If you are concerned about a loved one and their ability to look after their affairs, we can help by:
- preparing an deputyship application; and
- providing advice to the proposed deputies to help them better understand their role.
For further information about caring for someone who has lost or is losing capacity, visit our blog.
Frequently Asked Questions – Deputyship Applications
- What is the Court of Protection?
- Who can be a deputy?
- What are the duties of a deputy?
- What decisions can I make as a deputy?
- Should I keep records while acting as a deputy?
- How do I apply to the Court of Protection to be a deputy?
- What is a Lasting Power of Attorney?
- What types of decision can be made under a Lasting Power of Attorney?
- Why should I make a Lasting Power of Attorney?
- Who can make a Will?
- Do I need a Will?
- What is wrong with a DIY Will?
- I don’t have a significant amount of money, should I bother with a Will?
- My children are still young, should I wait until they are 18 to prepare a Will?
- What happens to my assets, if I die without a Will?
- What do executors do?
- Can I include funeral wishes in my Will?
- What type of gifts can I make under my Will?
- Can a Will help protect my property against care home fees
- When is a Will valid?
- Where should I keep my Will?
- How often should I review my Will?
What is the Court of Protection?The Court of Protection deals with the affairs of people who have lost mental capacity, either by making financial or welfare decisions for them or by giving another person (i.e. a deputy) the authority to do so. The most common application to the Court of Protection is to appoint a deputy to manage the financial affairs of a person who lacks capacity. Back to Index
Who can be a deputy?You can only be a deputy for a person who lacks capacity if you are over the age of 18. Ideally, the deputyship application should be made by someone who knows the person who has lost mental capacity well, understands their wishes and can involve them as much as possible in making decisions — for example, a family member or close friend. In any event, before deciding to make an order, the Court will look at the suitability of the proposed deputy. Back to Index
What are the duties of a deputy?When making decisions as a deputy, you must act in accordance with the principles of the Mental Capacity Act and the accompanying Code of Practice. You can find and view the Mental Capacity Act Code of Practice at www.gov.uk/opg/mca-code. Back to Index
What decisions can I make as a deputy?The Court of Protection will decide what powers are appropriate and set these out in the deputyship order. If you are acting as a deputy, you must take care not to exceed your authority. With that in mind, you may need to go back to the Court of Protection to seek further permissions. For example, you will generally need additional authority to make a loan on behalf of a person who lacks capacity, to make large gifts or use the person’s funds to support another. Back to Index
Should I keep records while acting as a deputy?Yes, you must keep a record of all dealings and transactions made on behalf of the person who lacks capacity. Papers to be retained should include copies of all bank statements, contracts, receipts of purchases and any correspondence that you have sent as deputy. You will need this information to complete the annual deputy report. Back to Index
How do I apply to the Court of Protection to be a deputy?To apply to be a deputy, you need to complete a paper application and obtain a capacity report confirming the loss of mental capacity. The paperwork is very detailed and can take a long time to complete. If you decide not to seek professional advice, you must be confident about the order you are asking the Court to make and what decisions you may need to make in the future. The Court will not grant you more powers than you have requested. We can help:
- assess whether a person lacks capacity and if a Court application is necessary;
- work with you to prepare the application;
- prepare instructions for a capacity report; and
- guide you through the Court process.
What is a Lasting Power of Attorney?An LPA is a legal document that allows you to appoint individuals you trust, known as attorneys, to make decisions on your behalf. Naming an attorney means that if you become ill or are involved in an accident and lose mental capacity, you know exactly who will be making decisions for you. Back to Index
What types of decision can be made under a Lasting Power of Attorney?There are two types of LPA:
- The Property and Financial Affairs LPA
- The Health and Welfare LPA
Why should I make a Lasting Power of Attorney?
Without a Property and Financial Affairs LPA, your loved ones will have to make an application to the Court of Protection to be granted the authority to manage your financial affairs (this is called a “deputyship order”). In the interim, the bank will freeze your accounts and potentially leave your affairs in limbo.
A deputyship application is time-consuming and more expensive than preparing an LPA. The Court also places ongoing obligations on those appointed; for example, deputies must submit a report every year enclosing financial accounts and details of decisions made on your behalf.
If you lose mental capacity without a Health and Welfare LPA, decisions about your health will be made by the medical professionals involved in your case or the local authority. While it is usually the case that these authorities act respectfully and consult your family, there are instances where the medical professionals and family members disagree.Back to Index
Who can make a Will?As long as you are over the age of 18 and have the requisite “testamentary capacity”, you can make a Will. Back to Index
Do I need a Will?Signing a Will is primarily about making the lives of those you leave behind easier and protecting their inheritance. Many people do not fully understand how their estate will be divided if they die without a Will; in fact, the truth can be surprising. Not making a Will is still a choice and it is important that you understand what will happen on your death.
- You own property.
- You own or have an interest in a business.
- You are cohabiting with a long-term partner.
- You are getting married or remarried.
- You are starting a family or have children under the age of 18.
- You are getting a divorce or have separated.
- You want to make gifts to godchildren, wider family, friends or charity.
- You want to skip a generation and provide for your grandchildren.
- Your estate will have to pay inheritance tax.
What is wrong with a DIY Will?There is no reason why a DIY Will should not be valid; however, the onus is on you to get it right.
Ultimately, preparing a Will without professional advice can lead to problems later down the line. If your Will is ambiguous, incorrectly signed, fails to deal with your entire estate or attempts to do something not permitted by the law, these failings will only be discovered on your death causing problems for your family and those left to deal with your estate.
I don’t have a significant amount of money, should I bother with a Will?Yes. Whilst you may not have a large estate now, this could change in the future.
My children are still young, should I wait until they are 18 to prepare a Will?No. For parents of children under the age of 18, the best way to appoint legal guardians for your children is through your Will. This ensures that should something happen to both of you, the legal guardians chosen by you will have parental responsibility immediately and be able to concentrate on looking after your children. Back to Index
What happens to my assets, if I die without a Will?If you die without a Will, the division of your estate will be governed by the intestacy rules. The resulting effect may not be as you would have wanted, so it is important to be aware of the position.
What do executors do?Your executors are responsible for administering your estate after your death.
Can I include funeral wishes in my Will?Yes, you can include funeral or cremation wishes in your Will. These wishes will not be binding but are normally followed where possible. Back to Index
What type of gifts can I make under my Will?Under your Will you can make specific gifts of property, personal possessions or cash. These will be distributed from your estate first, following the payment of any debts, funeral and administration expenses and any tax due, the remainder will be divided amongst those named as your residuary beneficiaries. Back to Index
Can a Will help protect my property against care home feesFor couples, protection can be obtained through Asset Protection Wills. If you would like to know more, please get in touch. Back to Index
When is a Will valid?A Will is valid from the date it is signed providing it is executed properly. A common reason for the failure of DIY Wills is the fact that they have not be properly signed and witnessed.
Where should I keep my Will?It is incredibly important to keep your original Will safe so that your executors can prove your Will on your death. Wherever you store your Will you must consider the risk of fire, flooding and theft. Timbrell Law offers storage of original documents for an annual fee. Back to Index
How often should I review my Will?You should review your Will whenever your personal circumstances change. We make sure to stay in touch with our clients to make changing your Will as easy as possible. Back to Index
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