Articles

01/05/2008

Court of Protection can help when loved ones lose mental capacity

The law changed last year making several improvements to the power of attorney system which allows people to appoint someone to act on their behalf if they lose mental capacity.

Enduring Powers of Attorney (EPA) were replaced by Lasting Powers of Attorney (LPA) which are much wider in scope. The property and finance LPA allows you to appoint someone to look after your financial affairs whereas the personal welfare LPA lets you grant an attorney authority over such matters as health care and the kind of treatment you receive.

LPAs have attracted a great deal of interest and allowed thousands of people to gain the peace of mind that comes from knowing that your affairs will be in good hands should your health suffer to a point where you can no longer make decisions for yourself.

However, while LPAs are a welcome development, they can only help if a person takes the necessary action when they are fit and healthy. Sadly, thousands of people each year lose mental capacity without having made any arrangements for their care or for how their affairs should be managed.

This can create injustices that cause enormous difficulties for their families. It could be, for example, that a man has lived with his partner for several years but never married. He always intended to leave everything to her when he died but like many people he never got round to making a will. Now he has lost mental capacity due to illness and it is too late to do so.

Unfortunately, because he has no will, when he dies his assets will be divided up in a way set down by law. It means much of his estate may pass to relatives he would not have chosen as his beneficiaries and his partner may end up with little or nothing.

There may also be situations where someone made a will several years ago but their circumstances have now changed dramatically. It could be that their family would benefit from a tax point of view or perhaps some other perspective if the will could be altered to everyone’s benefit.

The solution in at least some of these cases could be to make an application to the Court of Protection. It has the powers to effectively create a will or approve changes in the terms of an existing will if there is a convincing case for doing so and there is reliable evidence that the changes would be in accordance with the person’s wishes had they not lost capacity.

Please contact Kate Grundy on 0800 027 7870 if you would like more information about the Court of Protection or Lasting Powers of Attorney.