The King Needs a Deputy So Do You

This week Buckingham Palace announced King Charles has been diagnosed with cancer.  How serious or disabling this may potentially be, we don’t know, but he has his family – mostly – about him.

But just like you, they can help, but they cannot legally make decisions that by right only you can make. Counsellors of State, those authorised to undertake constitutional duties on the King’s behalf, can assist and within the Law make decisions technically the right of the King.

So who would be your Counsellors of State, and what ability to help would they have?

It is probably easy for you to know who they would be.

However without the appropriate legal documentation no-one has the authority to make decisions on your behalf if you are unable to make those decisions in time through absence, illness or mental incapacity either temporary or permanent.

Such decisions include paying bills, managing bank accounts, selling property, managing investments or arguing with Social Services as to whether you need to go into care, who pays, and which care facility.

Your husband, wife, live in lover and your cocker spaniel have equal rights, i.e. NONE without the correct legal documentation. I imagine the King is in the same situation as far as his personal affairs are concerned, but he will almost cert5ainly have taken all possible precautions within the Law.

I am more than happy to review your precautions FREE od charge, as I know that many of those who have taken precautions will find they are no longer either adequate or appropriate.   Like Wills, they need regular review as the Law, personal circumstances, age, and family all change.

What is Capacity to make decisions?

Under the Mental Capacity Act 2005, everyone over the age of 16 is presumed to have capacity unless it is proven otherwise. Even if you have a Power of Attorney in place (see below) your attorneys must allow you to make your own decisions where you are capable of doing so.  It is important to note that capacity must be assessed by your Attorneys (if you haven’t appointed Attorneys, then Social Services advising the Court of Protection) for each decision and at the time the decision is made, and both time frames and the complexity of the decisions will need to be considered.

For those diagnosed with cancer their capacity can fluctuate whilst they are having treatment.  They may need someone to assist them temporarily during treatment and capacity may return once the treatment has paused.

For those with Azlheimers diagnoses, very prompt action to appoint legal attorneys can save them from the clutches of the slow and expensive Court of Protection. For others their capacity may deteriorate as their physical health, so they may need more and more support over time.

For many their capacity may be fine but they may need physical assistance in implementing financial decisions. For example they may need someone to sign documents on their behalf or go to the Bank for them (that is a really dangerous one for reasons I won’t go into here – nothing to do with dishonesty).

Options 

Enduring Powers of Attorney

These remain valid, though no new ones can be made. It was common for EPA’s to include a restriction saying the EPA could only be used if the person making the EPA (the donor) has actually lost capacity. This was the perceived wisdom at the time, but has proved flawed as in effect the Enduing Power of Attorne3y is useless until mental capacity has been totally lost, which is not at all what is needed. It is prudent to replace the EPA and make Lasting Powers of Attorney.

Lasting Powers of Attorney (LPA). 

Since 2007, to appoint attorneys, you need to make Lasting Powers of Attorney which must be registered with the OPG before they can be used.

There are two types of LPAs;

• 1) Property and Financial Affairs
• 2) Health and Welfare.

 

Both types are essential or you will fall between two stools – for e3xample, leaving your attorneys the right to pay care fees but no voice in the choice of care home.

The who point is to have those you trust enabled to support you ifr an when things do go awry. No one really wants Social Services to manage their lives, but most people don’t realise that no LPAs is a vote for Social Services to be in charge.

The Property and Financial Affairs LPA can be used by the Attorney before the person making the LPA (the donor of the LPA) has lost capacity. However this can only be done with the donor’s permission. The donor must be allowed to make their own decisions where they are capable of doing so. However the attorneys can assist with implementing decisions.

The Health and Welfare LPA, can only be used when the donor does not have the ability to make a decision in relation to their health or welfare within a reasonable time, bearing in mind the urgency of the decision.

Court of Proitection and Deputyship

If someone doesn’t have an EPA or LPA in place and doesn’t have capacity to make them, then someone connected to them or in some cases a professional or Social Services will apply to the Court of Protection for a deputyship order. A deputyship order will give the applicant the authority to manage the financial affairs on their behalf.

Deputyship is expensive and restricting and should be avoided entirely by making and regularly reviewing Lasting Powers of Attorney, just as the rest of your Legal Planning should be reviewed briefly at least every 3 years or when changes occur in your family circumstances.

FREE REVIEW

Does what is says – a brief review of your situation to see if changes need to be made. Ideally with me, but the choice is yours.

Call Steve Pett on 01323 766776.