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What authority do you have to manage your parent’s affairs if they cannot?

15/06/2018

What authority do you have to manage your parent’s affairs if they cannot?

Planning for your own future can often mean planning for and helping those around you too.

With over 60% of the adult population without a Will the percentage is even higher for those without Lasting Powers of Attorney.

Even if your parent has a valid Will you do not have the authority to make decisions in their lifetime for any assets they have in their sole name. A Will only assists if a parent has passed away.

Lasting Powers of Attorney (LPA)

An LPA would allow a parent to appoint someone they trust (i.e. adult children) to manage and make decisions for them during their lifetime if they need assistance for either;

(A) Practical reasons

  • Parents are abroad
  • Parents aren’t out and about as much as they used to be
  • Parents are recovering from a routine operation

(B) Loss of mental capacity

  • Because of a condition or illness

There are two types of LPA available, one for property and finances and another for health and welfare.

We often urge clients to prepare a Lasting Power of Attorney (LPA) at the time of making their Wills as an LPA can be invaluable in future. A parent may always be independent, but in the event they are not then the LPA will be needed.

There are two stages to an LPA, once signed it will need to be registered with the Office of the Public Guardian before it is active. The document can be registered at any time either by the parent or the adult child.

The Office of the Public Guardian are currently receiving 3,000 applications per day to register LPAs. The current time quoted for registration is 10 weeks. We therefore advise clients to make their LPAs whilst they are independent and have them registered straight away and stored away with their Wills, even if the parent is independent, should they need any help in future then there is no delay, the children can step in and help immediately.

What if capacity is already lost and there is no Lasting Power of Attorney in place?

The family will need to make an application to the Court of Protection to be appointed as deputies (as opposed to attorneys under an LPA). This route is timely and expensive. The Court aim to provide an Order within 20 weeks of an application being submitted and the Court fee to apply is £400.

Once appointed the time and cost doesn’t stop there; as a deputy you need to send annual accounts to the Court of Protection, pay the Court a supervision fee for reviewing the accounts and you also need an insurance bond which is renewed every year at a premium set by the Court.

All of this time and expense can be avoided if an LPA is set up in advance, whilst a parent is independent. Once appointed as an attorney there are no ongoing fees and accounts to repair, unlike being a deputy (even though both roles and responsibilities are the same).

Case Study

Darren* came to see us after his mother had fallen over at home. The fall broke her hip and the pain from the fall had triggered the onset of dementia. His mother had always been dependent up until the fall. She owned her own house and had bank accounts in her sole name.

Whilst his mother was in hospital Darren wanted to manage her finances to ensure her bills were paid and that the property was insured but he had no authority to speak to the banks or to manage her utilities for her.

Once his mother returned home it was apparent she could not keep on top of her affairs as she had before. She relied on more assistance from Darren and lived with Darren for some time but eventually needed residential care.

If Darren had an LPA for his mother he could have dealt with the banks, utilities and arranged to rent out the property to contribute towards the cost of her care, he had always hoped she would be well enough to return home and did not want to sell the property.

Because of the dementia it was not possible for his mother to prepare an LPA at this stage, the document needed to have been prepared whilst she was well and independent.
Darren’s only option was to apply to the Court of Protection to be appointed as his mother’s deputy.

This would take 5 months and in the meantime he needed to make arrangements to pay his mother’s bills and pay for her care.

The delay and expense could have been avoided if his mother has previously prepared an LPA but as this was the first time something like this had occurred in their family they were none the wiser. Although Darren could not have an LPA prepared for his mother he has now prepared his own LPA to ensure his children do not have the same difficulties he had in managing his mother’s affairs.

Still unsure or need more information?
Whiskers LLP have a specialist team of Private client lawyers to assist and you should not hesitate to get in touch if you have any queries.

Harlow: 01279 439439
Epping: 01992 561111
Stortford: 01279 501550
enquiries@whiskers.co.uk

By Rachael Fleet
Whiskers LLP
Wills & Probate Solicitor

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