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Insight | For Individuals

Court Of Protection - Do you need a lasting power of attorney?

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The Court only has jurisdiction (which really means control) of matters affecting people who have lost their mental capacity and can’t make decisions for themselves on very much, if anything. The reasons for this can be many and varied- including following a traumatic birth, an accident, or, increasingly, through degeneration with age.

Often, these people have not been able to take any steps to authorise a Lasting Power of Attorney (LPA). An LPA allows someone to make decisions on their behalf. If an LPA is not in place, this is where the Court comes in. They can make orders about sales of property, wills, residence and who looks after the day to day finances. Before such an order is made, in the absence of a legal authority, nobody can- or should- do anything for that person. If they do and are found to have acted improperly, they can find themselves facing serious consequences.

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The need for an application can be sudden and distressing to all concerned and also inconvenient. Imagine if you were trying to sell your mother’s house to fund her care fees after she went into care because of dementia. Just at the moment that you thought you could agree the sale, your lawyer asks for your authority to sell on behalf of your mother, who never made a Lasting Power of Attorney. You don’t have it and the sale will be held up. Unless the buyer is going to wait several months, the sale will fall through. Sounds unlikely? It’s exactly a case we have dealt with before.

Checking the position earlier in the process of dealing with things- anything- for someone who lacks capacity will always mean a better outcome than doing nothing and hoping it will go away. It won’t- and my expectation in this era of increasing ID checks and regulation is that it will only get worse.


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