Court of Protection Planning To Avoid

Court of Protection: good planning will avoid it.

Most people think that their husband / wife / partner / children will take charge if you lose the ability to make decisions.  They are wrong.  You would be subject to the Court of Protection in those circumstances.

The Court of Protection makes decisions on applications which involve people who lack mental capacity.  Some people have both types of Lasting Power of Attorney in place (Property and Financial Affairs or the old Enduring Power of Attorney and the Health and Welfare LPA) and they have made their own decision as to who should take charge if they cannot make decisions.

But for those who have an unexpected car accident or an illness which robs them temporarily or permanently of the ability to make decisions, the future is far less certain.   The most likely outcome is that Social Services will take charge.  East Sussex Social Services are one of the better ones but on a national basis (2014) 52% of Social Workers used the wrong tests for whether or not a person had the ability to make decisions (technically, “mental capacity.”)

The majority of people would prefer to make their own choice of who should look after their affairs in these circumstances and few would choose social services!

There are circumstances where it is right to use a professional person as “attorney” and we are happy to act where there are no suitable family members.  With the best will in the world, we would strongly suggest that you contact us and we arrange both types of Lasting Power of Attorney at the earliest possible moment.  Leave it to late and the alternative is for a family member to apply to be your attorney, though Social Services may do so first.

Unlike (some) Enduring Powers of Attorney, which can only be registered when a person is losing mental capacity, Lasting Powers of Attorney have to be registered with the Office of the Public Guardian before they can be used at all.  This process is (at the time of writing) taking almost 3 months, so early registration is pretty much essential.  Not much point in having documents vital in an emergency, with a 3 months wait. If there was a problem with the LPA, then registration might be refused, which would then leave only the expensive, intrusive and slow route of applying to be a Court of Protection Deputy.  Please don’t let this happen to you!