What Happens to your Affairs Should You Lose Mental Capacity?

Categories Blog, Estate Planning, Power of Attorney, Will, Will Writing

Whilst you are probably mindful of the importance of having a Will, you may not be aware of the consequences should you lose your mental capacity. Duncan Sims, Business Development Manager at Kings Court Trust, and former Will writer, explains…

I am certain most of us would want to ensure that, should we become incapable of managing our affairs, someone we trust would look after them. We assume our spouse, partner, or family and loved ones will just be able to take control.

Many of us refuse to accept there is even a risk of it happening. However, diminished mental capacity is not just a problem for elderly people. The risk is there for everyone - from a road traffic accident, simple fall or even a sporting injury.

The Mental Capacity Act says if you did not appoint an Attorney whilst you were able, then only a Judge can. Your family or friends would have to apply to the Court of Protection to ask to be granted “attorney” status.

This is a lengthy and time consuming process with possible delays of several months at a time when your loved ones would be better served helping you rather than in court. It is expensive too - initial registration fees and further Barrister costs are often in the region of £2000.

This may shock you, but remember this is the law trying to protect you from being defrauded or ill treated by another.

The only certain way to protect your interests in these circumstances is to make a Lasting Power of Attorney (LPA) document. If you make this document in advance of any mental incapacity you can name who you wish to become your Attorney(s) and state the powers you’d like them to have.

Should they be needed they can then be registered quickly and without the judge. This makes it quicker, significantly cheaper and, more importantly, lessens heartache for all concerned.

There are two types of LPA currently:

  • One covers your personal affairs, so the bank accounts and bills etc.

  • The other covers personal welfare. This might include what clothing someone wears, what they might eat etc. Importantly, it provides the Attorney with the right to choose where a person might be cared for and how they are cared for. This is critical because without this power, the local authority might make decisions that are against the family's wishes.

The most important thing is to ensure that these documents are completed correctly. If they aren't, it is only likely to be discovered at the time when they're needed. Professional assistance should always be considered in such circumstances.

Ultimately, none of us knows what tomorrow has in store. You write a Will to ensure your wishes are managed properly when you die so why wouldn't you write an LPA to protect you in life, should you lose capacity?