Can I make a Power of Attorney if I lose mental capacity in future?

Posted 21 December 2022 by Capron and Helliwell

We are frequently asked “can I make a Power of Attorney once I have lost mental capacity?” or “a loved one has lost mental capacity – can I now make a Power of Attorney for them?” 
We always explain that you can only make a Power of Attorney (for Property & Financial Affairs and/or Health & Welfare) when you do have mental capacity – to either be used to manage your property and financial affairs straightaway or, if you prefer, only when you have lost mental functioning.  What is not possible is to make a Power of Attorney once mental capacity has been lost, either for yourself or for another person.
It is a requirement of the Power of Attorney that the person making the Power of Attorney, “the Donor”, has sufficient mental capacity to make the Power of Attorney.
So, it is certainly not possible to make a Power of Attorney once you have lost mental functioning or once someone whose affairs you are seeking to manage has already lost mental functioning. 
This can be heartbreaking for families where a loved one has lost mental functioning but there is no other way of being able to legally manage their affairs. 
So you may be thinking, “how do I manage the affairs of someone who has already lost mental capacity if they have not made a Power of Attorney?”  The answer to this is that you would need to apply for a Deputyship Order.  This is the solution in the absence of a Power of Attorney already having been created.  The problem with Deputyship, which is an Order granted by the Court of Protection, is that it takes significantly longer to set up than a Power of Attorney and is more long-winded, can be more stressful to set up, is more expensive and, ultimately, can’t be used straightaway the moment that mental functioning is lost – an application needs to be sent to the Court of Protection which takes some time.  This can cause a lot of difficulties and stress for families looking to manage a loved one’s affairs.
Understandably, safeguards are in place with applications for Deputyship Orders and it can feel like this can create obstacles to obtaining the ability to manage someone’s affairs.
The best option, if possible, is to apply for a Lasting Power of Attorney, when you do have mental capacity, to be able to be used later if you were to lose mental functioning.  This is generally quicker to apply for than a loved one applying for a Deputyship Order to manage your affairs on your behalf, is cheaper, and would hopefully ensure that the document is set up by the time you lose mental functioning, were that to happen.
It is also important to apply for the document to be registered at the Office of the Public Guardian.  If you apply for the document to be registered as soon as it has been created, and you lose mental functioning during the registration process, this will not cause any problems or delays as the Power of Attorney has already been set up.  The Power of Attorney can also be set up and be applied to be registered later by your attorneys if you do lose mental functioning, but that can cause delays to the management of your affairs so the best thing is to apply for the document to be registered as soon as possible – this does not, however, mean that your attorneys need to manage your affairs straight away.
Deputyship Orders from the Court of Protection are important to have in case someone loses mental functioning without having created a Power of Attorney but a preferable way of proceeding, if possible, would be creating a Power of Attorney to be used later in life if mental functioning is lost.
Powers of Attorney can be customised to suit the needs of the client and please get in touch with us to discuss this further.
Do feel free to contact one of our experts in the private client department if you have any questions or wish to obtain further information or discuss making Powers of Attorney.
This article was written on 30 September 2022 and the law may change following this date.
Every case, of course, depends on its own circumstances so always take legal advice from a trusted professional about your own set of circumstances.
This article aims to supply general information but it is not intended to constitute advice.  Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead.  However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy.  Always seek specific advice based on your own circumstances.

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“Capron & Helliwell” & “Capron & Helliwell Solicitors” are trading names of Capron & Helliwell Solicitors LLP, a limited liability partnership registered in England & Wales (LLP Number OC442740) whose registered address is 6 High Street Stalham Norfolk NR12 9AN.  Capron & Helliwell Solicitors LLP is authorised and regulated by the Solicitors Regulation Authority – No 8000009.

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