Being able to make decisions about our lives for ourselves is an important part of maintaining independence as we age. Our ability to understand and make informed decisions is called mental capacity. Sometimes, through illness or accident, we can lose mental capacity. If that happens, you might want a family member or trusted loved one to step in and make sure that you and your belongings are being looked after the way you want. One way to do this is through enduring powers of attorney. These are legal documents that grant the person of your choosing the ability to help you make decisions if you can no longer make them independently.
What happens if you lose mental capacity and you don’t have enduring powers of attorney in place? The Family Court has the ability to appoint someone to act on your behalf under the Protection of Personal and Property Rights Act 1988 (“PPPR”). The Court can appoint someone to look after your assets, such as your bank accounts and your home, as well as someone to look after your personal welfare, for example consenting to medical treatment on your behalf or deciding where you will live. Often, one person will be appointed in both roles, but it is possible to have a different person appointed to each.
Only certain people can apply to Court to be appointed under the Act, and this includes family members, doctors, social workers, and some welfare groups. Other people may be able to apply, but they need special permission from the Court first. If you want someone else to act on your behalf, such as a trusted friend, an enduring power of attorney is the best way to make that happen.
Once an application has been made, the Court will appoint a lawyer to represent you. It’s their job to discuss the application with you and to advise the Court of any thoughts you have about the application.
If the Court thinks it’s necessary and in your best interests, it will likely grant the application. It’s important to know that when the Court appoints someone under the Act that appointment only lasts for three years. This is different from an enduring power of attorney, which, once it comes into force, will last until either you regain mental capacity and choose to revoke it, or upon your death. Once the three years is over, a new Court application has to be made, which can be expensive and stressful for the people involved.
Putting enduring powers of attorney in place early is the most effective way to ensure that you are being cared for the way that you want and by the people you want.
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