Legal practitioners recommend that everyone has a Lasting Power of Attorney. They provide rainy day insurance for situations like the coronavirus pandemic and allow you to choose who has the authority to look after your affairs if you are unable to do so.
What can I do if there is not a Lasting Power of Attorney?
If someone you know loses the ability to make decisions for themselves, and there is no Lasting Power of Attorney in place, it is advisable to make an application for Deputyship to give you the authority to look after their affairs on their behalf.
This process can be quite lengthy, sometimes taking over 6 months to complete. With the ongoing pandemic, this time-frame has been extended further.
What can I do if I need to make urgent decisions?
You may be able to make some decisions yourself, without having to revert to a court for assistance. When making such decisions, the key is that it must be in the best interest of the individual concerned. We recommend that you always seek advice to ensure you are acting within the remit of any relevant legislation and are not vulnerable to prosecution.
There are some decisions for which you will need to make an application to the Court of Protection. The application you make will depend on what you are asking the court to make a decision about.
Finances – If the decision relates to someone’s finances, you will always need to make a Deputyship application. The application would need to state that there are urgent matters that need to be considered. Urgent matters may include accessing a bank account to pay bills or authority to complete a property transaction which has stalled.
Health and Welfare – If the decision relates to someone’s health and welfare, it may be necessary to make an emergency application to the court. Such applications usually relate to medical treatment (including whether to switch off a life support machine or not), removing someone from their home or the deprivation of their liberty (having to confine them in an institution). For such applications, forms still need to be completed but it is recommended that you speak to the court prior to lodging any application. In practice, this application will be much quicker than a normal Deputyship application.
An urgent application to the Court of Protection is not necessary if you are simply trying to assist someone who is vulnerable and has their movement restricted because of the pandemic. If you find yourself wanting to help someone in this position then a General Power of Attorney may be a more suitable option for you. Please click here for more information.
Do I still need to apply for Deputyship if I only need a decision on one matter?
If the decision relates to finances, then the answer is likely to be yes. If someone cannot manage their affairs now, then it may be that they will not be able to do so going forward or at least for some time. As such it would be advisable to obtain a Deputyship. This can be revoked if and when the individual can make their own decisions again.
If the decision relates to health and welfare, then a general Deputyship order may not be appropriate. The Court of Protection will only grant such a Deputyship in very limited circumstances.
Are the courts still open?
Courts continue to operate a best as they can. Urgent applications continue to be heard and are given priority. Such hearings take place by telephone or video conference and it is likely that this will continue for some time.
It may be the case that a hearing is not even necessary and the court can make a decision based on the evidence that has been submitted. In our experience the courts are acting as swiftly as they can to ensure that applications are dealt with efficiently.
The pandemic has caused standard Court of Protection applications to be processed more slowly. This may mean that you need to submit an urgent application in the meantime so as to allow you quicker access to an individual’s affairs.
Urgent applications have to be drafted and submitted in a short frame of time and are often complex. As such we would always recommend that you seek professional advice prior to making any such application.
If you require legal advice or assistance to make an application to the Court of Protection, request a Deputyship or execute a Lasting Power of Attorney please contact Sangeeta Rabadia to arrange a Consultation.