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My relative lacks capacity but doesn't have Power of Attorney

It is important to legally appoint a trusted friend or relative to act on your behalf before you lose mental capacity…

As we outlined in our ‘I am next of kin so why should a Lasting Power of Attorney also be in place?’ blog, we advise legally appointing an individual to act on your behalf before you lose capacity.

However, if a person lacks mental capacity through illness or injury (including but not limited to dementia, stroke, cancer, road traffic accident, coma, severe mental health problems, brain injury or alcohol and drug misuse) but did not appoint a Lasting Power of Attorney (LPA) there may come a time when no one can legally make decisions on their behalf. Paying bills, undertaking day to day banking, selling a property or making decisions about future medical care will become very difficult. In such cases, family or friends must obtain a Deputyship through the Court of Protection if they wish to be involved with decisions surrounding their relative’s ongoing care. A Deputyship works in the same way as a Power of Attorney, authorising a person to make decisions for Health and Welfare and/or Property and Finance on behalf of their incapacitated relative. The Court of Protection will decide if it is necessary for ongoing decisions to be made on an individual’s behalf, and whether the nominated person is suitable to be appointed to that role. They will also ascertain that there are no objections to the Deputy’s appointment.

At Compass CHC, we always recommend securing Lasting Power of Attorney while your relative still has mental capacity because the Court of Protection route is always more expensive, time-consuming and inconvenient. In particular it requires a detailed examination and background check of the person nominated to act as a Deputy and is far more specific in the permissions it provides.  It is also worth remembering that a Deputy must fulfil a number of ongoing legal obligations including the payment of an annual fee and the submission of an annual report to the Court of Protection which is not required under the LPA option. Further, the Court of Protection is exceptionally reluctant to provide a Health and Welfare Deputyship which can cause issues when attempting to secure the necessary medical records needed when making an NHS continuing healthcare funding application (see previous blog).

Our advisers are experts in healthcare funding and in managing care home costs. They often provide guidance on the process of applying for an LPA or Deputyship and, more specifically, how they work within the process of applying for NHS continuing healthcare funding.

For more information, call the Compass CHC team on 0121 227 8941 or contact us

Author: Tim Davies LLB

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