The Court of Protection: When Powers of Attorney go wrong
What happens if you lose mental capacity without a Power of Attorney
Only 7% of the UK population currently has a Power of Attorney in place. The rest of us are running the risk of having to resort to the services of the Court of Protection, if we find ourselves lacking mental capacity and not able to make our own decisions.
Unfortunately, this happens too often. Your relative who seemed, until recently, to just be suffering from a few mild dementia symptoms, is now showing more severe signs. Without a Power of Attorney in place, her family members cannot make decisions on her behalf.
It’s left to the Court of Protection to make decisions on financial and welfare matters for people who can’t make decisions at the time they need to be made. This may be where you end up living, what happens at the end of your life, and who can access your money. This is complex. costly and time-consuming, not to mention harrowing, for everyone involved.
I interviewed Fiona Heald, partner in the Court of Protection team at Moore Blatch solicitors, about what happens if you lose mental capacity without a Power of Attorney. Fiona explained the role of the Office of Protection and the challenges you will face on episode 022 of The Retirement Café Podcast, out on 9th April 2019.
If you don’t have a Health & Welfare Power of Attorney
If you lose mental capacity, someone else has to make decisions for you. This includes questions about your medical care, whether to resuscitate and how to deal with things. If there is no Power of Attorney, the doctors are in charge.
Most doctors talk to the family, and if there’s just a spouse or partner it’s fairly simple. The doctor will follow their lead.
If there are children, it’s more complicated, as doctors like to speak to everyone – all the children, which adds complexity and time.
They have to act in your best interests and consider all the options.
If you’re nearing the end of your life and decisions need to be made but you’re not in hospital, the local authority should allocate you a social worker. That social worker will then gather information about you, work out the best thing for you.
These people will be unlikely to know you and what you’d really like. That’s why expressing your wishes in a Health and Welfare Power of Attorney takes all the guess work away and ensures people treat you as you’d like to be treated.
If you don’t have a Property & Finance Power of Attorney
If you lose capacity to make decisions or act yourself, there are two options:
We wait 4 weeks to see if you get better:
If you’ve had a stroke or infection, for example, you may recover in time.
If access to your money is required within those 4 weeks, it’s not necessarily possible. For couples, it’s imperative that each person has access to their own money, not all in a joint bank account, as joint accounts cannot be accessed if one account holder has lost mental capacity.
Apply to the Court of Protection (CoP):
The CoP appoints a Deputy under a court order.
The Deputy is similar to an Attorney, who you choose yourself when setting up a Power of Attorney. BUT the Deputy has a more onerous job with more limited powers.
It takes about 6 months to get a court order.
There are emergency procedures to release money sooner, but normally you have to wait the 6 months.
You have no choice over who your Deputy will be. Family arguments can break out as children fight over the role and what’s involved.
Steps to getting a Court Order:
First of all, a Mental Capacity Assessment must be completed to prove you’re incapable of handling your financial affairs.
You may have to pay for a specialist to do this, if your GP won’t oblige.
The Deputy have to complete a 50-60 page form agreeing to undertake the role. This includes submitting detailed financial information.
When the application is issued, you have to notify the person and all other relevant people.
The judge reviews the application.
The Deputy is obliged to take out a Security Bond – a kind of insurance that will cover the loss of any money the Deputy or others steal from the person who’s mentally incapable.
All of the costs are covered by the person’s estate.
The Court finally releases the order, which gives the Deputy the authority to look after your financial affairs.
The fee is around £385, plus GP and insurance costs.
Ongoing demands of a Court Order
A separate bank account must be set up for the Deputy to manage, for which another fee will be charged.
You pay an annual fee for the CoP to supervise the Deputy.
Each year the Deputy must produce and submit accounts.
The paperwork is onerous.
All in all, costs can amount to £3,000 if you need the advice of a solicitor during this process.
Getting a Court Order for Health & Welfare
This is more complicated than for Property and Finance, as the CoP doesn’t not like to issue an order to cover all aspects of Health and Welfare decisions. They may, for example, issues an Order that says where somebody should live or what should happen at the end of their life, but an Order would need to be applied for on each occasion a major decision needed to be made.
When a Deputy is not doing their job properly
If an attorney makes a genuine mistake, such as making gifts from someone’s money because they believed that’s what mum, dad or the person for whom you’re acting as Attorney would want. Gifts are never allowed.
On occasions, care fees may not be paid. In these instances, the first port of call is the Court of Protection, which the local authority should contact.
If a Deputy is found to be misappropriating someone’s money, the Court of Protection can remove them from the position and appoint a professional, unless there is someone else suited to take over the role.
When Powers of Attorney go wrong
If you feel an Attorney is not doing the job as expected, possibly misappropriating the money or not acting in the person’s best interests, the Court of Protection should be contacted. They will investigate and may remove that person from being an Attorney, to be replaced by someone more suitable.
If two people are acting as Attorneys, just one may be removed and the other can continue. Generally, acts of misconduct don’t end in criminal charges because many people don’t wish to take family to court. The Court of Protection will appoint someone else to be Attorney, but may make their role that of a Deputy, meaning there is more oversight from the CoP than previously.
Why to take out a Power of Attorney and final thoughts
All the reasons discussed explain why you should take out a Power of Attorney. Just because you’ve done the Power of Attorney, doesn’t mean to say those people have got power over you. To have somebody who can deal with your finances and somebody who can make health and welfare decisions if something happens to you, is incredibly reassuring.
You don’t need to hand out documents to people. Even if you did hand out Health and Welfare POA, if you’re mentally capable, it can’t be used.
Remember, your bank account will be frozen if you are deemed mentally incapable and don’t have a PoA in place.
If you own a property jointly and you become mentally incapable, the property cannot be sold by the other person. Also be mindful that if, in this situation, the other person – your spouse or partner – is your soul Attorney, the property still cannot be sold. That’s because your spouse cannot act both as themselves and on your behalf for the sale.
There are discounts available from the Office of the Public Guardian for registering a PoA if you can prove you earn less than £12,000 per annum.
About Fiona Heald
Fiona Heald is a partner in the Court of Protection team at Moore Blatch Solicitors. She looks after the interests of vulnerable people and where appropriate their carers, helping them deal with the issues that arise in later life.
Fiona is also a member of the Society of Estate and Trust Practitioners (STEP), Treasurer for the South Central branch of Solicitors for the Elderly and a Dementia Friends Champion.
She can be contacted at www.mooreblatch.com or via email on fiona.heald@mooreblatch.com.