If you believe your parents have lost the mental capacity to look after their finances, property, healthcare, or welfare, you’ll likely want to make important decisions on their behalf. However, the law does not automatically grant you the power to do this – if your parents have not appointed an attorney these decisions will usually be made by social services or the state.
To appoint an attorney, your parents will need to make a Lasting Power of Attorney (LPA). An LPA can only be made by the donor (your parents), whilst they have sufficient mental capacity to knowingly and confidently divulge these powers to you. However, what defines ‘sufficient mental capacity’ in this context can be a bit of a grey area.
In this guide,we’ll discuss what steps you’ll need to take to ensure you are able to look after your parents in their time of need, including what needs to be done if your parents have already lost the mental capacity to legally make an LPA.
Do My Parents Still Have the Mental Capacity to Make a Lasting Power of Attorney?
We’ll need to speak with your parents to ascertain whether or not they have the mental capacity to make an LPA. Once we’ve made this assessment, we’ll be able to advise you on which route you’ll need to take in order to gain the powers needed to manage their affairs.
If your parents are no longer able to make an LPA, you’ll need to apply for ‘deputyship’ with the Office of Protection instead. We’ll discuss what this means below.
What is ‘Deputyship’ With the Office of Protection?
If your parents lack the mental capacity to legally appoint you as their attorney, we can help you apply to become their ‘deputy’ instead. Similar to LPAs, you can apply for two types of deputyship – one will give you the power to handle financial and property-related decisions, and the other will allow for health and welfare-related decisions. The court may not always grant you both types of deputyship, which is one of the reasons why it’s always recommended to arrange an LPA before it gets to this late stage.
Applying for deputyship is also a far more lengthy and costly process than applying for an LPA, sometimes taking several months to complete. At the end of the process, if successful, you’ll officially become your parents’ deputy. Being a deputy often carries the same powers as being an attorney, but you’ll receive a court order detailing what you can and cannot do. As a deputy, your decisions will be scrutinised to ensure they are made in your parents’ best interests, and you’ll need to send an annual report to the Office of Public Guardian each year explaining the decisions you’ve made on your parents’ behalf.
Why Making an LPA Is a Better Route Than Applying for ‘Deputyship’
Having your parents make an LPA whilst they are still fit to do so is a far better option than trying to gain these powers after they are unable to look after themselves. LPAs can be made and registered years in advance, meaning you can look after your parents whenever they need you to instantly and seamlessly. Applying for deputyship can take months, leaving your parents in limbo and potentially causing huge amounts of stress during an already hard time. There’s also no guarantee you’ll be granted the power to make decisions in all areas of your parents’ life, as the courts may want to see proof that certain decisions couldn’t be made adequately without your input.
The Bottom Line
If your parents lack the mental capacity to make an LPA then we can help you apply for deputyship instead, and we have the contacts and experience to make this process easier for you. However, we strongly recommend that your parents make an LPA before it comes to this, and we’re able to assess your parents’ mental capacity to see if this will still be possible.
It’s worth noting that our advice is relevant to people of all ages. You never know if you’ll one day be incapacitated – you could be unconscious from a car accident or unable to make decisions due to an illness or injury at any time in your life. Aside from the stress and cost of applying for deputyship, if your condition is only temporary your family may not have time to go down this route. Knowing you have an LPA in place will give you the peace of mind that you’ll always be looked after by the people who love you, and the confidence to get on and enjoy life to the full.
If you have any questions about the information in this guide, or about Lasting Power of Attorneys in general, please get in touch and our friendly team of experts will answer all of your questions for free. Call us on one of the numbers below or book a FREE consultation here. We look forward to helping you and protecting your loved ones.
Camberley: 01276 691979
Basingstoke: 01256 637007
COVID-19 Update
Due to the current situation, you are now able to make an LPA with us remotely for your own safety and convenience. The article below details how this works for our Wills service but the process is very similar when making an LPA. The only difference is that you require just one witness when signing your LPA – we can act as your witness if you need us to. If you would like to make your LPA remotely, click on the article below for more information or call us and we’ll explain how it works.
