If you lose the mental capacity to make decisions regarding your health and welfare or property and financial affairs, who will make those decisions on your behalf?
It's an important question and one that needs particular consideration in the context of joint bank accounts.
If two people hold a joint bank account and one of the people passes away, the rules of survivorship apply. This means that the surviving partner will automatically become the sole holder of the account and the funds within.
This is not what automatically happens when one of the joint account holders lose mental capacity. Survivorship rules do not apply in this situation.
When one of the holders loses mental capacity, they can no longer consent to the joint use of the account and funds. Therefore the bank should then make the decision to freeze the account.
Access to the funds will then be limited to someone acting on behalf of the person that no longer has mental capacity. This may be in the form of a Lasting Power of Attorney (LPA), a Court of Protection appointed Deputy, or an Enduring Power of Attorney (EPA) if such an agreement was made prior to October 2007.
The surviving account holder and the Attorney/ Deputy can then make arrangements with the bank regarding the distribution of the funds.
It is worth noting that, as every case will have its unique circumstances and each bank has its own policy regarding this area, advice will vary on a case by case basis.
In the absence of an LPA or EPA, the bank may act at their discretion to allow temporary access to limited funds to the surviving joint account holder for essential transactions related to day-to-day living expenses.
This may continue until a Deputy has been appointed by the Court of Protection. This can be a fairly lengthy and costly process, often taking many months and several thousand pounds to resolve. This can be avoided with an LPA.
To understand how an LPA can help you and your loved ones, please feel free to contact Gepp Solicitors for impartial and professional advice. The Private Client team can be contacted on 01245 228125 or PrivateClientEnq@gepp.co.uk.
This is not legal advice; it is intended to provide information of general interest about current legal issues.