Lifetime Planning

By Sarah Lockyer


Since the pandemic it has been reported in the press that there has been a dramatic spike in the number of will enquiries. This has certainly been our experience as a firm with us receiving an increasing number of instructions for new wills or to carry out a review of existing arrangements. As important as it is to make and regularly review a Will so too is it vitally important to consider what arrangements you can put in place to afford protection, should you become physically/mentally incapacitated in the future.

There are a number of ways in which this can be achieved. Prior to 2007 it was possible to make a document called an Enduring Power of Attorney which enabled a donor to appoint an attorney(s) to assist them with their property and financial affairs should they become unable to manage on their own account. Pre-existing Enduring Powers of Attorney remain valid but are limited in scope in that they only extend to property and financial matters and do not cover health and welfare. Further, an attorney is under a duty to register the document when the attorney is becoming incapable of managing their own affairs.

Much more common place are Lasting Powers of Attorney. These are documents which have been in existence since 2007 and enable an individual to make provision to support not just the management of their financial affairs but can also extend to cover their health and welfare matters too. There are two types of Lasting Power of Attorney: property and finance and health and welfare, it is not necessary to make both types, but there are very good reasons for doing so. They are flexible documents in which it is possible to appoint main attorneys, replacement attorneys and provide instructions and guidance to the attorneys as to how they should operate. 

In contrast to Enduring Powers of Attorney, these documents can be made and registered with the Office of the Public Guardian so that once registered (for financial matters) they are capable of being used straightaway. They help to ensure that if an individual should become physically or mentally incapacitated, they have the help and support in place to assist them to manage all aspects of their finances and care going forward.

It is crucial that you think about putting such documents into place as should you lose mental and or physical capacity, your family and loved ones would not have the legal authority to be able to assist. It is a common misconception that being a spouse gives you the authority to assist, however you have no legal authority unless an Enduring Power of Attorney or Lasting Power of Attorney is in place.

If no Enduring Power of Attorney or Lasting Power of Attorney is in place, it can be extremely stressful for your loved ones to get the necessary legal authority to be able to act on your behalf and they would need to apply to the Court of Protection to be appointed as your ‘deputy’. This is an extremely lengthy and costly process which is currently taking between  6-12 months to put in place. 

Whilst you are waiting for a deputyship order to be put in place, unless you have asked the court to make an order in the interim, you will be unable to manage your loved one’s finances and so it can be an extremely worrying time for all concerned.

The Court has recently issued guidance which has increased the complexity of making such an application. For example, where an incapacitated person has a property which needs to be sold to fund their care, it will be necessary to provide the court with details of the decision taken by a social worker to move the individual into care and the extent of the restrictions put in place on the person’s liberty to prevent the individual leaving the care home.

For more information and to find out how we can help you, please contact 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.