When clients enquire as to how to get a power of attorney when a person is incapacitated UK, the first thing we explore is their interpretation of the word ‘incapacitated’. Typically, such questions are posed when the subject of the enquiry is unable to act for themselves, because of some deteriorating condition or accident.
- Lasting Powers of Attorney can only be obtained by those with mental capacity.
- Implementation of these documents may take many months.
- Applications are often rejected due to error.
Where ‘incapacitation’ is expected to persist for some time, the appropriate instrument may be a ‘Lasting Power of Attorney’ (‘LPA’). LPAs come in two forms: the ‘Health and Welfare Lasting’ LPA (for health decisions) and the ‘Property and Finance’ LPA (for financial decisions).
LPAs can only be created while the person giving power of attorney (the Donor) has mental capacity. ‘Incapacitated’, as used in the question above, may describe a physical impairment or a mental health event.
Mental capacity is not the same as vulnerability or mental illness. In law, a person must be assumed to have mental capacity unless it is established otherwise, moreover, all practical steps to help the person make decisions for themselves must be taken. Nobody should be assumed to lack mental capacity simply because they do something ‘silly’ or imprudent.
In broad terms, mental capacity is assessed by integrating observations of: appearance/behaviour; speech; mood; thoughts; perceptions; information processing and insight, to form a view of the individual’s capacity for: cognition, orientation and memory (Much Hon Craig Ward of Lundy 2020). If there is doubt, a professional assessment should be sought.
Mental capacity is time specific and item specific. This means that the subject need only have sufficient capacity and intention in relation the decision in hand (e.g. the instructing of a Lasting Power of Attorney), at the time they do it. For clarity, it should not be assumed that, just because an individual lacks such capacity at one point in time, it won’t return.
If the party clearly lacks capacity e.g. they are in a coma, then an LPA is not appropriate. In such instances a deputyship might be sought through the courts.
How to get power of attorney when person is incapacitated UK
Assuming the Donor has mental capacity, there are other factors relating to the LPA one should understand.
Firstly, to be used, LPAs must first be approved and registered by the Office of the Public Guardian (‘OPG’). This registration process is lengthy (at time of writing around five months). The OPG charges for registering the documents (at time of writing up to £82/document i.e. £164 for both LPAs).
Secondly, the vast majority of those making LPAs use professionals to do so, and for good reason. Tens of thousands of LPA applications were rejected last year. Associated documentation and law is comparatively complex, and errors frequently made. The impact of such errors is exacerbated by the length of time it takes to register the documents. It is perfectly possible for a donor to apply for an LPA only for the OPG to notify them of an error sometime later, by which time the applicant has lost mental capacity.
LPAs are very important documents which are not straightforward to put in place. I urge you to reach out to a professional as a first step in the process of application.
If you would like to discuss Lasting Powers of Attorney with Confidence Wills visit our website now and book a free consultation (www.confidencewills.co.uk).