Andrew Jack, Probate and Wills Specialist with AMD Solicitors answers a frequently asked question regarding looking an elderly relative.
My elderly uncle is in the early stages of dementia. He would like me to help him with his financial affairs but I’ve been told I have to get a Court Order appointing me Deputy. My friends tell me this is unnecessary and that there is a simpler way. Who is right?
No one likes to contemplate that the above situation will affect them or their relatives. Most people assume that if through reasons of mental or physical incapacity we could no longer look after our affairs, then our families would automatically be able to deal with them for us. This is unfortunately not true.
The only ways for authority to be granted to one person to handle the financial affairs of another is either by a Lasting Power of Attorney (which replaced the Enduring Power of Attorney several years ago) or by an order of the Court of Protection known as Deputyship.
A Lasting Power of Attorney can only be made by someone who has full mental capacity. If capacity is in doubt, a solicitor will ask the person’s GP to give his or her medical opinion before proceeding. If capacity cannot be established then a Lasting Power of Attorney cannot be made. Instead an Order to be appointed Deputy will be required. Whilst anyone can apply to be a Deputy any relatives closer to the patient than the applicant must be notified and these other relatives have the opportunity to object. There is a fee for this, which is set much higher than the fee for registering a Lasting Power of Attorney.
The Court will set a hearing date which will be at least 21 days ahead. No one need attend the hearing. If the application is granted the Court undertakes to issue the order within 6 weeks but until this order is received you are not able to act as Deputy.
So – the answer to the question at the start of this article as to whether a Deputy application is the only way forward depends on whether the professional view is that your uncle has “legal” capacity. You should arrange for your uncle to see his solicitor as soon as possible. If only your uncle had thought AHEAD. If you would like peace of mind that the person you feel is best suited to look after your affairs will end up doing so then an Lasting Power of Attorney should be considered as important as a Will.
It may save that Deputyship Application!