In order to be able to create a valid Power of Attorney a person must have mental capacity. What happens when it is too late?
The answer is that an application can be made to the Court of Protection for a person to be appointed as a Deputy to enable him or her to act on behalf of the mentally incapable person. Usually the Deputy will be a member of the family, but it can be any person and if no one is willing to take on the task, a professional person such as a member of our firm, can make the application and be so appointed.
The person has to be certified by a medical practitioner as being incapable of managing his or her own affairs and there is a set form that has to be completed. The intended Deputy then has to complete yet more forms and supply details of the person’s assets. The application is then made to the Court and notice of the application is served on the person and certain other people.
The Court will acknowledge the application, at which time a fee will be payable (currently £400). This has to be paid up front, although ultimately it can be reimbursed from the person’s assets. After the application has been issued, further formalities have to be undertaken, and eventually the Court will make an Order appointing the Deputy and setting out the Deputy’s powers. At this time an insurance bond has to be applied for.
The process is not complex, but highly procedural. The right forms have to be completed and served at the correct time. Thirsk Winton LLP have the expertise and experience to help you with this, and indeed if no one is prepared to make the application, one of our notaries will undertake the task.
Once the Order has been issued, confirmed and one month has elapsed, it takes effect and acts very much in the same manner as a registered Power of Attorney. Third parties such as banks and company registrars may now deal with the Deputy instead of the incapable person.