“My mum is struggling to manage her affairs, what can I do to help?” This is a query we have regularly received in the past few months and the answer is not straight forward.
Jennifer Robinson, paralegal in the private client team at Wake Smith offers advice.
In order to help manage someone’s affairs, you must have authority – this may be from the person themselves or the Court of Protection.
There are different ways you can manage a person’s affairs and this depends primarily on the circumstances of the person who’s affairs you want to manage and whether they have mental capacity.
The term mental capacity is used to refer to a person’s ability to make a decision about a particular matter at the time the decision needs to be made. To make a decision you must be able to consider the relevant information, evaluate the different options, and make a choice. There must also be an intention to make that decision, shown by understanding the nature of the action you are taking and the consequence of taking such actions.
Powers of Attorney
A Power of Attorney (PoA) is a legal document whereby a donor can appoint an attorney to make decisions on their behalf. A PoA gives the attorney permission to deal with third parties on the donor’s behalf. The donor must have capacity at the time they make the PoA.
There are different types of PoA but for the benefit of this article, we will focus on Lasting Powers of Attorney (LPA).
There are two types of LPA – Property and Financial Affairs LPA and Health and Welfare LPA. A donor can make just one type of LPA, or both types if they wish.
Both types of LPA must be registered with the Office of the Public Guardian before the attorney can make decisions on behalf of the donor. This is to safeguard the donor from any potential abuse. An attorney who does not act in the best interest of the donor can be investigated.
A Health & Welfare LPA cannot be used unless the donor loses mental capacity. However a Property & Financial Affairs LPA can be used as soon as it has been registered, as well as when the donor loses mental capacity. This flexibility is desirable as it allows the donor to plan ahead and appoint someone to look after their affairs for a long period of time.
Deputyship
When a person becomes incapable of dealing with their own affairs as a result of incapacity, they are unable to make a Lasting Power of Attorney. As a result, the Court of Protection will need to be involved.
The Court of Protection is a specialist court which looks after individuals who lack capacity to make a decisions for themselves.
The court makes decisions for these individuals or can appoint someone to manage the individual’s affairs. There are two areas of decision making - management of a person’s property and affairs, and making decisions in relation to a person’s health and welfare.
If someone wants to manage someone’s affairs, they need to apply to the Court of Protection to be appointed as a Deputy. A deputy is usually a relative, friend or carer of the person. If there are no suitable or willing friends or family members to act as Deputy, a professional such as a solicitor can be appointed.
To discuss further with a member of our private client team, please call us on 0114 266 6660.
