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Can we avoid delays in setting up powers of attorney?

Partner James Cook advises a Financial Times’ reader on obtaining lasting powers of attorney for their mother who is affected by dementia.

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Published 1 June 2023

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The Financial Times reader seeks advice regarding their mother, who is in her mid-eighties and suffering from dementia. They, along with their two siblings, want to obtain lasting powers of attorney while their mother is still capable of consenting. The reader is aware of delays in obtaining the necessary paperwork from the Office of the Public Guardian (OPG) and is worried it could take months.

The most effective method to avoid unnecessary delays is to ensure that the LPAs have been correctly drafted and executed. The information required for an LPA is not onerous. However, it is common for mistakes to occur in the signing of these documents, such as signing them in the wrong order or in the wrong place.

When completing an LPA, we usually advise to elect that the LPA is registered immediately, rather than at the stage the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent for a medical or legal professional to act as the certificate provider so as to mitigate against a potential disagreement regarding the donor’s mental capacity at the time of executing the LPAs.

It is important to note that capacity is not binary under the Mental Capacity Act 2005 and your mother’s recent deterioration will not necessarily preclude her from validly signing an LPA where, at the time of signing, she is able to understand the effect of executing the LPAs and the appointment of her attorneys.

Unfortunately, the OPG does not readily accelerate applications. If an urgent application is required, it would likely be necessary to submit an application to the Court of Protection for a deputyship. This process can be costly and time-consuming.

Whilst the LPA is being registered, it would be advisable to consider contacting a solicitor to draft a General Power of Attorney (POA) regarding your mother’s financial affairs. A POA will take effect immediately upon execution and will allow you (or the appointed attorney) to manage your mother’s financial affairs. The POA can only be used while your mother has the requisite mental capacity to manage her affairs, however, it may assist in the general administration of her affairs as her condition deteriorates.

It may also be advisable to liaise with a financial adviser to establish joint bank accounts and ensure your mother’s financial security through products such as annuities, which would provide for her needs after she has lost capacity.

For more information, visit our Lasting Power of Attorney FAQs page.

This article was first published on the Financial Times in May 2023.

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Longer Reads

Can we avoid delays in setting up powers of attorney?

Partner James Cook advises a Financial Times’ reader on obtaining lasting powers of attorney for their mother who is affected by dementia.

Published 1 June 2023

Associated sectors / services

The Financial Times reader seeks advice regarding their mother, who is in her mid-eighties and suffering from dementia. They, along with their two siblings, want to obtain lasting powers of attorney while their mother is still capable of consenting. The reader is aware of delays in obtaining the necessary paperwork from the Office of the Public Guardian (OPG) and is worried it could take months.

The most effective method to avoid unnecessary delays is to ensure that the LPAs have been correctly drafted and executed. The information required for an LPA is not onerous. However, it is common for mistakes to occur in the signing of these documents, such as signing them in the wrong order or in the wrong place.

When completing an LPA, we usually advise to elect that the LPA is registered immediately, rather than at the stage the donor has lost capacity. Although not necessarily a concern for this reader, it is prudent for a medical or legal professional to act as the certificate provider so as to mitigate against a potential disagreement regarding the donor’s mental capacity at the time of executing the LPAs.

It is important to note that capacity is not binary under the Mental Capacity Act 2005 and your mother’s recent deterioration will not necessarily preclude her from validly signing an LPA where, at the time of signing, she is able to understand the effect of executing the LPAs and the appointment of her attorneys.

Unfortunately, the OPG does not readily accelerate applications. If an urgent application is required, it would likely be necessary to submit an application to the Court of Protection for a deputyship. This process can be costly and time-consuming.

Whilst the LPA is being registered, it would be advisable to consider contacting a solicitor to draft a General Power of Attorney (POA) regarding your mother’s financial affairs. A POA will take effect immediately upon execution and will allow you (or the appointed attorney) to manage your mother’s financial affairs. The POA can only be used while your mother has the requisite mental capacity to manage her affairs, however, it may assist in the general administration of her affairs as her condition deteriorates.

It may also be advisable to liaise with a financial adviser to establish joint bank accounts and ensure your mother’s financial security through products such as annuities, which would provide for her needs after she has lost capacity.

For more information, visit our Lasting Power of Attorney FAQs page.

This article was first published on the Financial Times in May 2023.

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