Esther Marshall
Court of Protection
Emmerdale explores LPAs
Emmerdale’s recent episode delves into the difficulties faced by families when an elderly relative’s health starts rapidly deteriorating.
Emmerdale’s recent episode delves into the difficulties faced by families when an elderly relative’s health starts rapidly deteriorating. Faith’s ongoing cancer had spread to her brain which is now affecting her mental health and capacity. The recent episodes have shown us the battle her and her family are facing, from confusion and lies, to Faith being unable to continue making her own decisions.
Eventually Faith agreed she needed to appoint an Attorney under a Lasting Power of Attorney (LPA) for financial and property matters. This allows someone to make decisions in relation to finances and property. Faith also decided on a do-not-resuscitate order and end of life care was discussed, both of which can be referred to in a Health and Welfare LPA.
Although LPAs are highly recommended, the timescale that is shown in Emmerdale is unrealistic. LPAs have a turnaround of over 16 weeks until they can be used by an Attorney, so it is always best not to leave it until the last minute before considering an LPA, otherwise it may be too late. A restriction can be put in an LPA so that the document cannot be used until the Donor has lost capacity, but this is not recommended due to the delay in registration; if the LPA is already registered and available to use, the Attorneys can provide assistance when needed.
If left too late it might not be possible to appoint someone to act, due to a lack of capacity, if the person would not understand what is needed and would therefore, be unable to appoint Attorneys. If this is the case then there is another option, a Court of Protection Deputyship application can be made.
The Court of Protection route is currently taking nine to twelve months for an Order to be made to allow a Deputy to be appointed to act. In addition, there is a Court fee (currently £371), an annual supervision fee payable to the Office of the Public Guardian (£320 per year), and a Bond that needs to be put in place (the cost depends on the value of the person’s assets). A Bond is an insurance to protect the person’s assets while the Deputy is acting on their behalf. (Prices correct 2022).
Sometimes the Court of Protection is the only route for people who have never had capacity. For example, people who suffer an injury or illness during their childhood.
Samantha Hamilton, Solicitor, Panel Deputy & Professional Attorney, at Mullis & Peake LLP said;
“Soaps are obviously there to entertain, so the information provided may not be entirely accurate. However, the message that LPAs should be considered is an important one.
LPAs are not something to consider only when an illness has been diagnosed or is progressing. It is a method of planning for the future and is best seen as an insurance policy in case of future need. I gave a talk several years ago when it was commented by someone in the audience ‘an LPA is like a fire extinguisher; you buy one hoping that it will never be needed, but it’s there in an emergency.’
The cost and delays of Court of Protection applications for a Deputy can be avoided if an LPA is put in place when a person still has capacity to do so.”