Lasting Powers of Attorney, Deputies and Lack of Capacity

WINTERBORNE LEGAL SERVICES

Contact us on 01308 424808 or Email: enquiries@winterbornelegal.co.uk

WHAT DO WE MEAN WHEN WE SAY SOMEONE ‘LACKS CAPACITY’?

A spring day in the Swannery car park

If you have read anything about Powers of Attorney, you will possibly have seen references to the person who created the power of attorney ‘lacking capacity’ to make their own decisions.  But what does this actually mean?

A person who has ‘mental capacity’ is able to make their own decisions, big and small, about every aspect of their everyday lives and also about more important decisions with far reaching consequences.

A person who lacks mental capacity may be  suffering from an illness or a disability.  This would include a person having mental health problems, a learning disability or dementia.

You can choose to eat an unhealthy meal!

A person may lack mental capacity in relation to some decisions but have capacity to make other decisions.  For example, a person would need a greater degree of capacity to make decisions about investing money, than to manage a small weekly budget that enabled them to visit a coffee shop to meet friends, or to buy magazines, fruit, or cigarettes and sweets. 

If you hold a registered Lasting Power of Attorney for someone who is lacking capacity, you can make decisions about their money and financial matters on their behalf.

Quite often, people will say that they don’t want to create a Lasting Power of Attorney now, they want to wait until they need it. The problem with this is that by the time they need the Lasting Power of Attorney, they will no longer be able to create one.

If you think you should have a Lasting Power of Attorney but don’t want to create one until it is needed, you may have concerns about giving up control of your money. This doesn’t need to happen, and you can explain in the Lasting Power of Attorney that it cannot be used until you lack capacity. This is an area where you may need advice about the protection that can be included in your Lasting Power of Attorney.

Bear in mind that if you do need a Lasting Power of Attorney but have left it too late to create one, someone will need to apply to the Court of Protection to be appointed as your Deputy.

If you would like to have a free, no obligation, chat about whether a Lasting Power of Attorney would be of benefit to you, please call us on 01308 424808 or email us at enquiries@winterbornelegal.co.uk.

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