With coronavirus affecting every area of life – including the justice and legal system – there’s a real need to protect and carry out the wishes of people who are at their most vulnerable. Especially those who are deemed ‘mentally incapacitated’ and sadly unable to make decisions for themselves. Chantal Ul Haq-Weedon’s job as a Court of Protection Solicitor is to support them and their families to deal with these difficult decisions with the right legal structures in place.
The Court of Protection’s role is to make decisions for people who lack the mental capacity to make them. The court can make decisions itself or appoint deputies to make those decisions in relation to issues such as property, financial affairs, health and welfare.
Below, Chantal outlines some of the key aspects of this work – something that needs sensitivity and care as well as fastidious adherence to legal safeguards.
Statutory Wills
People who are appointed as a Deputy (see below for definition of what that means) or an Attorney for someone who has lost capacity, need to establish if a Will is in place and, if not, if a Statutory Will is required.
An urgent, Statutory Will can be put into place if someone has lost capacity and is receiving end-of-life care. However, a legal process must be followed, and carried out properly. This can be done over the phone during this present crisis but certain evidence will be needed to show it's urgent.
It's important that this is talked through to ensure that the person who has lost capacity (if they are able), as well as their family/proposed beneficiaries are happy with the terms of the Statutory Will. Someone is appointed on behalf of the person who has lost capacity (the official solicitor) and they will ensure that the application considers all possible beneficiaries.
"The detail needs to be worked through, with a specialist who is able to fully understand the situation, during what can be an extremely distressing and challenging time for the Deputy/Attorney involved as well as the protected party,” explains Chantal.
LPAs (Lasting Powers of Attorney)
Now's the time when more people than ever will be considering the need to plan for the future. What happens if you or a loved one contracts COVID–19? Who will manage the finances or make decisions about live-sustaining treatment?
If you want this to be a family member or friend, rather than a medical team, now is the time to consider getting a Lasting Power of Attorney (LPA) in place. These LPAs allow us to determine, legally, a representative who we wish to act in our best interests, either alone or with their help, in making decisions on our behalf if we are incapacitated. Like Wills, the creations of LPAs would usually require face-to-face meetings. However, there are ways in which it can be done using telephone, video conference, Skype, Whatsapp or Facetime, for example.
Business LPAs
If you have a business, you may also wish to consider a Business LPA to ensure someone is in place to continue running the business if you were unable to do so temporarily or going forward. This will protect the operation, enabling the business to continue and the staff to be paid. No matter what happens in the near future, you will be leaving a legacy for the generations to come, and a Business LPA will enable you to do this.
Deputyship Order
If someone has fallen very ill and lost capacity, there may be the need to make an application to the Court of Protection for a Deputyship Order (which gives the Deputy similar authority to that of an Attorney). Normal Deputyship applications take between six to 12 months and the current situation will increase that delay.
However urgent Deputyship applications can be made for health and care decisions. These require the gathering of a considerable amount of information depending upon the circumstances. This can be extremely distressing, for example a situation could involve a disagreement between a medical team and a family. Applications must be made only after the very best professional help is sought, with a step-by-step guide through the process.
Beware unregulated advisers
Unregulated advisers may be contacting householders, encouraging them to look at products, such as trusts and Will-making online and be inviting the use of their services. While not illegal, these products may be totally unsuitable and not take account of a person’s assets or financial situation. Householders could be tempted to buy things they do not need and waste what could be considerable sums of money.
In normal circumstances, such unregulated advisers are often seen in public areas or leaflet dropping to advertise their services. Now they may well try to contact people via social media, or online advertising.
Contact us
For more advice on any of the above, Chantal Ul Haq-Weedon can be contacted on 01522 515 011 or email: chantal.ulhaq-weedon@wilkinchapman.co.uk
