Loss of Capacity
There are very few of us who will go through life untouched by the cruel hand of dementia. It is a wicked disease which can devastate families. Loss of Capacity can however be caused by a multitude of different illnesses or accident and is in no way confined to the elderly. It can also bring up all sorts of legal issues with which we can help:
Creation of a Lasting Power of Attorney (LPA)
Sometimes loss of capacity is progressive and capacity levels can fluctuate so it still may be possible to create an LPA. We are experienced in assessing capacity and working with clients on the edge of capacity resulting in a better chance of an LPA being possible.
General advice to attorneys
We find that where an attorney has been appointed without the involvement of a specialist solicitor the attorney is sometimes completely at sea with what he or she can or can’t do as attorney. Acting as attorney outside the scope of your authority (for example the making of most gifts) is a serious matter and can be avoided by taking advice from an expert on the various dos and don’ts.
Registration of Enduring Powers of Attorney (EPAs)
These were the predecessors to Property and Financial Affairs LPAs and since October 2007 it has not been possible to create an EPA although documents created before then remain valid. If you are an attorney under an EPA and you believe the person who appointed you “is or is becoming mentally incapable of handling his or her affairs” then you have a duty to register the document with the Office of the Public Guardian. We can help with this by explaining the registration procedure to you, completing the various documents, serving notices on the prescribed relatives and advising of your ongoing duties as attorney.
Application to Court of Protection for deputyship order
For those clients without a valid LPA or EPA who have assets that are frozen due to their incapacity it may be necessary for someone to apply for a court order to enable them to access those assets for the benefit of that client. A common scenario for this is with sudden incapacity (perhaps caused by a severe stroke) following which the client cannot return to his or her home and arrangements need to be put in place to sell the property to fund care fees. Such a court application can be a complicated process but we are here to guide you and, if necessary, we can act as deputy and deal with the ongoing financial affairs of the client. We are happy to accept referrals from Local Authority Social Services Departments.
Management of Financial affairs
Some clients are not lucky enough to have close family or friends who they trust to act for them should they lose capacity. We are available to act on their behalf in such circumstances either under an LPA or deputyship order.
If you are worried about a relative, friend or neighbour
Those who lack or are starting to lack capacity are extremely vulnerable to abuse from third parties and sadly sometimes even family members. If you suspect any form of physical abuse or neglect you should immediately contact the safeguarding team at your local authority. However most local authorities do not have the skills to deal with financial abuse and will often suggest that you take legal advice. We have experience of dealing with such matters, sometimes liaising closely with the local authority. Again we are happy to accept referrals directly from local authorities where there are no known family members.