Thanks to Martin Lewis of Money Saving Expert and Saga, Lasting Powers of Attorney (LPAs) have been brought to public attention and now many people now have LPAs in place. However, most people only find out about LPAs when something bad happens e.g. a car crash or as a result of an illness such as Alzheimer’s Disease.
Unfortunately, this means it is often too late to make a LPA. If this is the case, it is still possible to be appointed to act but you would have to make an application to the Court of Protection to be appointed as a Deputy (which is similar to being appointed as an Attorney).
Everyone wants to do the best for their family, whether it be looking after their children or providing financial assistance to relatives in need. This is especially true when caring for elderly parents. A common concern for all families is wanting to do the right thing. Using a LPA is often seen as a means to an end, i.e. allowing a family member to care for another. It is firstly important to note, that it is best to make LPAs when you are in good health. LPAs are the cheapest & quickest way to prepare for losing your ability to act for yourself.
However, many people question whether they need an LPA, particularly if they are already actively involved in helping their loved one. This is also true when it comes to making applications to the Court of Protection. As a result, many people do not take any action and just continue to care as they had done before, without ever registering an LPA or applying to the Court of Protection; but a recent court case has highlighted just how important it is to obtain legal authority before taking any action.
A Son and Daughter noticed that their Mother's mental state had begun to deteriorate and decided that they needed to make arrangements for her care. It was agreed between the family, that the Daughter would be primarily responsible for looking after their Mother. Over the course of several years, the Daughter became more and more involved in her Mother's care and this included looking after her finances. The Mother did not have a LPA in place but this did not present any immediate problems as the Daughter was able to care for her needs without any problems. However, after several years, there were disagreements between the Son and Daughter about decisions made for their Mother, and the Daughter decided to make an application to the Court of Protection to be appointed as her Mother’s Deputy. The application was rejected (for reasons that are too lengthy to go into here) and several Court cases followed.
The Judge praised the Daughter for the exemplary care she provided to her Mother and said she did the right thing in looking after her. However, because the Daughter had not been appointed to act for her Mother under a LPA or Court of Protection order, the Judge held that she had acted improperly by making decisions for her Mother. Therefore, the Daughter was wrong to act in the way that she did. This caused many legal challenges and resulted in an independent Solicitor being appointed to look after their Mother.
After the final Court case concluded, the total legal fees incurred amounted to over £70,000, a substantial amount of which had to be paid by the Daughter. This entire situation could have been avoided had the Daughter and the family applied to the Court of Protection as soon as it became apparent that their Mother could not look after herself.
As is often the case, the circumstances of this individual case are far more complicated than the main issues discussed above and some other, very serious, consequences arose from the Daughter’s actions. However, the main point raised by this case is that even though the Daughter was recognised as doing the right thing by caring for her Mother, she was still wrong to do it without express authority from her Mother (under an LPA) or by the Court of Protection (by being appointed as a Deputy).
Although it may not seem like an order is needed to allow you to care for your loved one, it is always a good idea to only act if you are appointed as an Attorney or Deputy. This could potentially save many thousands of pounds in legal expenses and more importantly, provide assurance that you are doing the right thing, not just in the eyes of your family but also in the eyes of the law.
Should you wish to discuss any of the issues raised above or have any questions about how to make an application to the Court of Protection, please contact Paul Clark on 01625 523 988 or mail@JBGass.com