If someone is incapacitated, having a Power of Attorney will allow a trusted relative or friend to deal with their affairs on their behalf. There are different types of Power of Attorney, depending on the situation. We take a look at how to get Power of Attorney when a person is incapacitated and what to do if this is not possible. 

At Lockings Solicitors, we can advise you and your loved ones on putting a Power of Attorney in place. The members of our specialist LPA team have a deep understanding of the challenges of incapacity, in particular, mental incapacity, and you will find them approachable and supportive. 

Types of Power of Attorney 

If an individual is physically incapacitated, a general Power of Attorney will give someone else temporary authority to deal with certain financial decisions on their behalf. This can only be used if the individual has mental capacity. 

If someone is mentally unable to manage their own affairs, then a Lasting Power of Attorney (LPA) is needed. An LPA can only be signed if someone has the mental capacity to understand the authority they are handing over. 

Making a Lasting Power of Attorney 

It is advisable for most people to have a Lasting Power of Attorney in place, in case it is ever needed. You can make two types of LPA, one in respect of property and financial affairs and one in respect of health and welfare. 

The documents give legal authority to your named attorney to make decisions for you, should you ever lose the mental capacity to do this yourself. You can sign and register an LPA and then keep it in case it is ever needed. 

What happens if someone is incapacitated and they have not signed a Power of Attorney? 

If someone is physically unable to deal with transactions, for example, because they have been injured and they are unable to go to the bank, a general Power of Attorney can give someone else temporary authority to deal with matters for them. 

If they are mentally incapacitated and they do not have an LPA in place, an assessment will need to be made as to whether they have the understanding to sign an LPA. 

They cannot make an LPA if they do not understand the implications of signing it and they cannot use an ordinary Power of Attorney if they have lost mental capacity. 

Making a Lasting Power of Attorney if someone has dementia 

If someone has been diagnosed with dementia, they may still be able to make a Lasting Power of Attorney if they have sufficient mental capacity. 

They will need to: 

• Understand what they are signing and what the implications of signing are 
• Be able to hold the information they are given about the effect of the LPA in their memory long enough to decide whether they wish to sign 
• Make their own decision, having considered the situation 
• Communicate this decision  

The individual may have good days, where their comprehension is better than other days. It is acceptable to sign on a good day if they meet the requirements of understanding.  

We can advise them and ensure that an independent medical expert assesses them to certify that they have the competence to sign. This is important, in case the validity of the LPA is ever challenged in the future. 

What happens if someone is incapacitated and cannot sign an LPA 

In some cases, it may be too late for someone to sign an LPA if they can no longer understand the reason for it or the implications of signing. 

In this case, a family member will usually need to apply to the Court of Protection for a deputyship order. This involves asking a medical expert to prepare a capacity report and you may also be asked to attend a hearing. 

We can guide you through the deputyship application process if necessary, and give you the advice and assistance you need to help your loved one with their affairs. 

The court will set out in the deputyship order what powers the deputy will have. This could include managing their assets, paying bills and collecting their benefits. You will need to make sure that you do not exceed the authority that has been granted. 

It may be necessary to go back to the court in the future if you need to take action that has not been authorised. For example, if it becomes necessary to sell the patient’s home, you will usually need to make a separate application to do this. 

As a Court of Protection deputy for someone’s financial affairs, you may need to pay a premium to put a security bond in place. This is insurance that protects the patient’s assets. 

You can also ask to be someone’s personal welfare deputy. This would give you the authority to make health and welfare decisions on their behalf.  

As a deputy, you will be subject to ongoing supervision by the Office of the Public Guardian. You will need to submit an annual deputy report and you may be visited by a Court of Protection visitor to check that you understand your role, to see if you need any support and to make sure that you are carrying out your duties properly.  

The annual deputy report will need to include details of all financial transactions you have made on the patient’s behalf as well as information about any major decisions you made for them. This should include the reasons behind the decision and details of who else you talked to about it.  

Avoiding the need for a deputyship order 

It is considerably easier to put an LPA in place than to secure a deputyship order and there is less ongoing supervision for attorneys than for deputies. For this reason, it is a good idea to make an LPA if at all possible.  

We can discuss with you whether it may be possible to put an LPA in place, including if someone has the early onset of mental incapacity. 

Contact our East Yorkshire and York area Power of Attorney solicitors 

If you are considering putting a Power of Attorney in place, we would be happy to help.