A common enquiry we have is that a family member has not appointed a attorney in the form of an LPA and sadly lacks capacity to deal with their affairs. What can be done in order that they obtain authority to deal with their financial and property affairs ? The answer is that you can make a Deputy Application to the Court of Protection which would enable you to deal with these affairs.

There is no guarantee that a Deputy Application would not be opposed, the application is far more time consuming and involved than appointing someone as attorney under an Lasting Power of Attorney. However as we all know an LPA can only be entered into by a donor when they have capacity. In summary everyone should consider appointing an attorney under an LPA but if you are stuck dealing with a loved ones affairs their is a potential solution in a Deputyship Application to the Court of Protection. For more information click the link https://www.clodes-solicitors.com/service/deputyship/

As the sad and high profile case of Kate Garraway shows dealing with financial matters for a loved one without an LPA can be extreme difficult. As Kate explained, “One of the practical problems – which a lot of people would have experienced if they’ve got the absence of someone in their life – like many things, the car is entirely in Derek’s name, the insurance is in Derek’s name, a lot of our bank accounts. There are lots of financial goings on which are making life very complicated because I can’t get access to things because legally I haven’t got power of attorney.”

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Clodes Solicitors
Clodes Solicitors
A common query we receive is that P has lost capacity - how does one remove an Attorney appointed under an LPA ?

The Mental Capacity Act 2005 under S.22 and S.23 gives the Court power to revoke an LPA or to determine any question as to the meaning or effect of a lasting power of attorney.

One must carefully consider whether the allegations have merit and who it is proposed would deal with the persons financial affairs should the LPA be revoked.

One could raise there concerns directly with the Office of The Public Guardian or the attorney.

Alternatively one could consider making an application to the Court of Protection to revoke the Power of Attorney and appoint X as a Deputy. If time is of the essence an application to the Court for Directions or Revocation maybe prudent following a letter before action.

If a person is considering a Court of Protection application they should seek legal advice before commencing.

Where a Court application for revocation is being considered the donor would need to be assessed by an expert to ascertain the following:

1. Does P have capacity to revoke their LPA ?
2. Can P validly enter into a new LPA ?
3. Does P lack capacity to request accounts from their attorney ?
4. Did P lack capacity to make the gift or relevant financial decisions at the relevant time ?

The Court can consider any past behaviour or apparent prospective behaviour by the attorney. Provided that X does not have capacity the Court has the power to take whatever steps it regards as appropriate in P's best interests, whether that be by revoking the LPA or by taking some other course.

If you have concerns about a loved ones Attorney contact Clodes Solicitors on 02920 765050 or at https://www.clodes-solicitors.com/service/lasting-power-of-attorney/ #solicitor #local

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