Anyone over the age of 18, who has the mental capacity to do so, can designate someone in a legal document, known as a Lasting Power of Attorney, to deal with their affairs on their behalf if they later lose mental capacity meaning they are unable to make such decisions for themselves. But what happens if someone loses the required mental capacity before they are 18? And what happens when they turn 18?
What Does 'Lacking Mental Capacity' Mean?
Firstly, the term mental capacity is not to be confused with any specific mental illness. The test for mental capacity is question specific. A person is deemed to lack the mental capacity if at the relevant time they are unable to make the particular decision in question due to "an impairment of, or a disturbance in the functioning of, the mind or brain," (as defined by the Mental Capacity Act 2005). Sometimes the reason for a person lacking the required mental capacity is known well before the age of 18, giving you time to prepare. At other times lack of the required mental capacity arises suddenly, perhaps as a result of an accident or stroke. But what if someone loses their mental capacity in an accident aged 17 or younger?
After The Accident
Until the age of 18 a person is considered a minor and it is the person or people who has parental responsibility for them, usually their parents or legal guardians, who will be authorised to make decisions on their behalf. However, upon reaching 18 a person becomes a legal adult and the parent or guardian will no longer have this legal authority. If no Lasting Powers of Attorney has been previously put in place, the only option for relatives or loved ones who wish to continue to assist is to apply to the Court of Protection for a Deputyship Order. This is the same for any adult who loses capacity without having a valid Lasting Power of Attorney in place.
An application to the Court of Protection for such an order involves one or more people (usually close family members but sometimes a professional) asking the Court to let them manage the person's affairs on their behalf. There are two types of Deputyship Order; one relates to financial affairs and the other relates to personal welfare and medical decisions.
The application process is lengthy and the legal costs for straightforward applications are fixed by the Court, currently at an amount not exceeding £950 plus VAT. If an application is complex, the legal costs can rise. In addition the Court charge a fee of £385 to make the application (unless the person to whom the application relates is in receipt of certain benefits or on a low income), medical fees will apply and there are ongoing costs relating to the supervision of the Deputy after the Court Order is made.
If an application isn't made, or while an application is on-going, any person who tries to make decisions on behalf of the person who lacks mental capacity would be doing so without the proper legal authority. In reality, they won't get far as banks and other institutions will simply not accept that they have the authority required.
What a Solicitor Can Do For You
If somebody you know is unable to manage their affairs, and doesn't have a valid Lasting Power of Attorney in place, our knowledgeable and friendly Wills, Trusts & Probate team are happy to offer advice and, if necessary, assist you in making an application to the Court of Protection. We can help make sure foreseeable issues are sorted prior to an application being made and in the unlikely event that issues do arise during the Court process we can help resolve these swiftly and efficiently. We appreciate from experience that this process can be daunting and stressful, and will be on hand to support and guide you throughout.
Lasting Powers of Attorneys
Due to the complexity and cost of the Court of Protection process, it is sensible to make a Lasting Power of Attorney before a lack of capacity arises, if at all possible. This provides clarity and peace of mind for you and your family. Making a Lasting Power of Attorney in advance is also more straightforward, quicker and cheaper than making an application to the Court at the point of crisis.
If you have any questions regarding Lasting Powers of Attorneys or Deputyship Orders please do get in touch with a member of our team or refer to the relevant website pages in the Wills, Trust and Probate section.
We are currently offering a 20% reduction on our usual fees for preparing and registering Lasting Powers of Attorney for all appointments made on or before 28th February 2018. If you are interested in arranging a Lasting Power of Attorney with our highly experienced Wills, Trust and Probate Team then please contact Fosters Solicitors on 01603 620508 or by email using the online enquiry form on our website and a member of the department will be in contact very soon.