The law states that if you have the mental capacity to make a decision for yourself, then you have the legal right to make that decision, even if your decision is considered by others to be unwise.
What happens if you do not have the mental capacity to make a decision for yourself? This will depend upon whether you have made an LPA (or its predecessor the Enduring Power of Attorney).If you lack mental capacity to make decisions and have not granted an LPA then the power to make decisions on your behalf is vested in the courts. The courts have complex rules which need to be followed and members of your family would have to apply to the court for orders which give them authority to make decisions on your behalf. This is slow, complicated and expensive with fees being paid on an annual basis and every time the court are asked to make further orders.
A person can make either or both types of LPA. There are procedures which need to be followed to create a valid LPA and before an LPA can be used it has to be registered with the court. Registration usually takes around three months and you can choose whether or not to register an LPA with the court immediately. The court will charge a fee for dealing with the registration. You could delay the registration of the LPA until it becomes necessary for it to be used. In this situation, if you never reach a stage where you lack capacity you will not have paid a court fee for an LPA that is never used. This may be appropriate for people who, if they reached a stage where they lack capacity, have family members or friends who could assist them informally for at least a few weeks whilst the registration process takes place. Alternatively, if you do not have family members or friends who can assist you or want the peace of mind of knowing that the LPA exists and is ready to be used if necessary it may be best to register the LPA straight away. We can advise you further about registration and you can then make an informed choice which best suits your own circumstances.
Partner and Private Client Solicitor
Tel: (01756) 692 883