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