Justice Minster urges action to protect financial affairs

Release date: 29/1/2010

The Court of Protection is facing a barrage of criticism for its red tape and inefficiencies, which has left some relatives waiting up to six months to get control of financial affairs.

Around 1,500 complaints have been received in the 18 months since the Court of Protection was set up and handed responsibility for overseeing the affairs of people deemed to have become mentally incapable.

Now the public is being urged to take action to protect themselves against any future mental illness or accident, by appointing a nominee in advance to look after their financial affairs.

In one case, a wife had to get the court's permission every time she wanted to sign a cheque for more than £500 after an accident left her husband in a coma. In another, a brother was told it could take 21 weeks and incur a £400 charge to apply for funds for increased nursing home fees.

In radio interviews, Justice Minister Judith Prentice said she was encouraging solicitors across the UK to advise clients to make Lasting Powers of Attorney - LPAs - a document appointing somebody to look after their affairs should they become mentally incapable. Latest statistics show that around two million people in England and Wales lack the mental capacity to make decisions for themselves, while 15,000 people under the age of 65 have been diagnosed with dementia.

If someone has not made an LPA and they become mentally incapable, their financial and personal affairs must be managed by the Court of Protection, through a court-appointed deputy. Usually it's a family member, but the procedure is under fire for being long-winded, complex, expensive and inappropriate for many families. Having an LPA in place avoids the delay, expense and stress of applying to be appointed deputy by the court. Most importantly it gives the named deputy the authority to act without referral to the Court of Protection.

There are two types of LPA - a Property and Financial Affairs LPA used to appoint someone to look after finances, and a Health and Welfare LPA - used to appoint someone to deal with issues such as residency, medical treatment, and level of care required.

As with any legal document, the LPA is only valid if the person signing it is capable of understanding its consequences, so it must be in put in place while a person is still capable. Before it can be used, the LPA must also be registered with the Office of the Public Guardian - the administrative arm of the Court of Protection. The registration procedure can take two months or more – another source of complaint.

Karon Walton, legal executive and probate specialist with Midlands' law firm Harvey Ingram, says LPAs are now just as important as wills.

She adds: "Although we all hope that we will remain mentally fit until the day we die, greater life expectancy means that illnesses such as Alzheimer's are becoming more of a problem. An LPA gives a friend or family member the means to look after your affairs in the simplest and least burdensome way.

"The alternative is that some unlucky family member will be saddled with dealing with the courts, producing annual accounts, and paying legal and court fees until the day you die."