LEGAL FOCUS - Advice for carers of loved ones losing capacity


Sarah Johnson and Jemma Blake, experienced solicitors advising those dealing with financial, property and health, affairs explain what's needed when a person loses capacity and there is no Lasting Power of Attorney in place.

Sarah shares her experience : "It is extremely distressing for a client who is faced with the news that their loved one is losing capacity and is no longer able to deal with their own affairs.   They may well have been sorting out pensions, care fees, health visits etc for some time - but then find they need legal authority to carry on making decisions on a day to day basis.    I find many clients simply cant understand why they have dealt with their parent, spouse or relative's affairs for some time and suddenly they hit a brick wall.   

Once they understand the reasons why an official application to the Court is necessary to be appointed as Deputy for the loved one - and hear some of the stories of where a party has taken advantage of a person's incapacity - they appreciate why this protection is in place.  Unfortunately, where a person has not made a Lasting Power of Attorney appointing someone they trust to act as their Attorney, there is no other route available other than a Court application.  Needless to say there are legal and court application fees payable for an application - without any guarantee the Court will allow the applicant to be appointed - and so at Nowell Meller we spend time explaining the process, what the Court is looking for in assessing whether the applicant is the right person to be appointed, who should be notified of the application - and what's involved afterwards.  It is not just a matter of obtaining a Court Order to continue dealing with the relative's affairs - there's a lot to do afterwards to comply with the Court's requirements and clients need to consider all of this before they embark on an application.  

I find the majority of our clients have already taken considerable responsibility for their loved one - and having to meet the Court's requirements is accepted because they wish to continue caring and making decisions.

Jemma outlines what a Deputy can do 

"If a client is thinking of becoming a Deputy they have to think about the continuing responsibilities involved, as there are many tasks and responsibilities they have to take on.  These include a duty to:

  • act with due care and skill (duty of care)
  • not take advantage of the situation of the person with dementia (fiduciary duty)
  • protect the person against liability to third parties caused by the deputy's negligence
  • not delegate duties unless authorised to do so
  • act in good faith
  • respect the person's confidentiality
  • comply with the directions of the Court of Protection.

On top of this basic duty, if a client is a Deputy for a person's property and affairs, they also have to keep accounts, and keep the person's money and property separate from their own (ie opening and keeping a separate bank account).

Jemma and Sarah are always happy to sit down with a client, over a coffee, and understand what the client has been undertaking - and how best they can continue to act and care for their loved one.

Help and advice ? please feel free to call or email Sarah or Jemma for advice on caring for a relative or friend who is losing capacity.

Contact Sarah at our Stoke on Trent branch : Tel 01782 813315 or Email Sarah

Contact Jemma at our Stafford branch : Tel 01785 252377 or Email Jemma