If your husband has had a stroke and is having trouble managing his affairs, you need to consider the following steps.
Has your husband made a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA)? – if either of these are in place you do not normally need to take any further steps because the Attorneys appointed under these documents will have power to deal with his affairs in his name, providing these have been, or are in the process of, being registered with the government body known as the Office of the Public Guardian.
If there is no LPA or EPA the position is a bit more complex.
One of the key problems for individuals that have suffered a stroke is in establishing whether they have the mental capacity to make a Power of Attorney. If they retain sufficient mental capacity to do this it may be better to organise this quickly in case there is further deterioration in their mental capacity. This can be a difficult arear to navigate, at an already very stressful and unchartered time, so please rest assured, we can assist in guiding you through the process from start to finish.
Sadly, depending on the severity of the stroke, some individuals may no longer be able to make decisions regarding their health or financial matters. In such instances, the only route available would be the Court of Protection. The Court are there primarily to safeguard vulnerable individuals from financial abuse. An application should be made to them to become a ‘Deputy’, someone who is a trusted individual. The Court decide, by issuing an Order, that this person will be suitable to handle the person’s affairs, as Deputy. However the Order the Court grant is far more restrictive than the powers conferred under general law on an Attorney appointed under a LPA or EPA, in short, our legal counsel is essential in establishing what powers the Deputy (you) may need now, and in the future, and accordingly weaving this into our application to the Court, at the outset.
This is a specialist area and we have put together a few Frequently Asked Questions on the Court of Protection regime.
FAQS
What’s The Difference Between Power of Attorney such as an LPA or EPA and a Deputyship?
A Power of Attorney requires the person granting the power to have the capacity to make decisions at the time of the Power i.e. before they lose mental capacity.
If they have lost mental capacity already then they cannot make an LPA and an application to the Court of Protection for a deputy to be appointed is the only option.
What types of power does the Court of Protection have?
The Court of Protection can:
- Decide whether your spouse has the mental capacity to make financial or welfare decisions for themselves.
- Appoint a deputy who can make decisions for your spouse on an on- going basis or a one off basis
- Decide on applications for making statutory wills or gifts
How long does it take the Court to appoint a Deputy?
The process of appointing a deputy can take 4-6 months. There are urgent procedures available in certain circumstances.
Who can be a Deputy?
As a spouse you are able to become a deputy – in fact any person over 18 can be appointed as a deputy. There are preconditions such as not having a criminal record or not being bankrupt.
You may find it is better for an adult child to be appointed together or instead of you to share the burden of care.
Usually, non-professional deputies are close relatives of the person lacking capacity, but this could also be a close friend or a professional deputy such as a solicitor.
Two or more people can be appointed jointly to act, or jointly and independently (i.e ‘joint and severally’).
What decisions can I make as a Deputy ?
A “property and affairs” deputy can manage their bank accounts, pay their household bills and pay other bills such as care fees.
A “personal welfare” deputy can make decisions about where the person lives, the care they receive and some decisions about their medical treatment.
Can I sell a property if appointed as a Deputy?
An order will often give you authority to manage the property and affairs of your spouse, however, as stated above, an Order will not give automatic right to sell property your spouse owns unless express permission of the Court is sought.
Can a Deputy be changed?
An application can be made at any time to the Court of Protection for the current deputy to be discharged and replaced with an alternative deputy.
There may be many reasons for this – the deputy themselves may have lost capacity. Further, you can also apply if you believe the deputy is not making correct decisions in the best interests of your spouse or there is a disagreement between the parties which makes the relationship unable to work especially if trust is lost. It may also be that the deputy is exceeding his or her powers as granted by the Court and this may also be a ground to intervene.
If you are concerned about the conduct of any deputy you can also report them to the Office of the Public Guardian (OPG) and they are likely to investigate your concerns.
What is a “Statutory Will” and why would the Court of Protection make one?
A statutory will is a will made and approved by the Court of Protection on behalf of the person who lacks the mental capacity.
Normally this can be made if the person has not made a will but they can sometimes make a revised or new will if there is a significant change such as a change in the family for example a death, birth or marriage or a change in the tax laws.
Again these statutory wills can be challenged if you believe the will does not cover the circumstances correctly.
Emma Crompton is an experienced solicitor who can assist you through the legal issues and guide you through the process, with a caring and attentive manner.
For an initial chat on your specific circumstances and details of our fees call Emma Crompton on 01708 757575 or email Emma.Crompton@ker.co.uk