Private Client

Mental capacity and powers of attorney

Mental capacity and powers of attorney

Powers of attorney

An ordinary power of attorney will cease to be valid if the donor loses mental capacity. Therefore we strongly recommend that our clients have Lasting Powers of Attorney (LPAs) in place, which can be used in the event that they lose mental capacity. There are two different kinds of LPAs: one enables attorneys to make financial decisions on behalf of the donor and the other deals with health and welfare decisions. A health and welfare LPA can also enable attorneys to make decisions about life-sustaining treatment on behalf of the donor. Careful thought needs to be given to the choice of attorneys, whether a relative, friend, or professional, and how they are appointed. We will prepare the necessary forms and register them with the Court in order that the LPAs will be ready for use should they ever be required. An LPA for financial decisions may not be required if the client already has an earlier form of power of attorney known as an Enduring Power of Attorney (EPA) in place. We can deal with the registration of EPAs and related advice, and also advise whether it is necessary to replace the EPA with a financial decisions LPA. In addition to preparing LPAs for clients, we also advise attorneys on their duties and responsibilities and help guide them through potentially difficult times, once it becomes necessary for the attorney to start using the LPAs.

Deputyships

If you lose the capacity to make decisions on your own behalf, and have not granted a power of attorney, the only way that access can be obtained to your financial assets is for an application to be made to the Court of Protection for a deputy to be appointed. The deputy can make decisions in your place so far as your financial affairs are concerned. We have a team of lawyers who are experienced in making such applications, but the process is expensive and time consuming for all parties and therefore much better avoided by having LPAs in place. Deputies can also be appointed in relation to health and welfare decisions.

 

Disabled persons’ trusts

Disabled persons’ trusts provide a tax efficient mechanism for controlling funds on behalf of a vulnerable beneficiary who is unable to manage their finances. Such trusts benefit from special tax treatment and we can assist in their preparation and administration, ensuring the trusts qualify for the most tax efficient treatment. Statutory wills and applications to the Court of Protection Where a person lacks capacity to make an ordinary Will it is possible to apply to the Court of Protection to make a “statutory will” on their behalf. It is also possible to apply to the Court for authorisation to effect, for example, lifetime succession planning if a person lacks capacity to make those decisions. We have lawyers who are experienced in preparing such Wills and dealing with the Court and families in relation to this specialised area.

Download an overview of lasting powers of attorney under English law.

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