What happens if someone loses mental capacity without Lasting Power of Attorney?

Posted on 22nd June 2020

When a loved one loses their mental capacity, it can be a difficult time for their friends and family. This can particularly true if that person does not have a Lasting Power of Attorney (LPA) in place. One of the most common questions we hear is around what happens when this is the case and what options are available.

In this piece, we take a look why it’s important for people to have an LPA in place and explore the options available when one is not.

The importance of a Lasting Power of Attorney

When someone (most commonly a partner or a parent) has lost the capacity to make their own decisions, it leaves a number of tricky obstacles to overcome and decisions to be made.

These can include financial considerations such as:

  • Buying and selling property
  • Accessing funds in their bank accounts to pay for their care
  • Dealing with tax affairs
  • Claiming benefits

There are also a number of health and welfare considerations to be made, including:

  • The type of day-to-day care they should receive
  • Where they should live
  • The type of medical treatment they receive
  • Who they have contact with

If the person already has an LPA in place before their capacity to make their own decisions is lost, it means the nominated attorney is able to make decisions on their behalf.

What happens if there’s no Lasting Power of Attorney?

If the donor has not put in place an LPA before they lose their mental capacity, it can leave family members in a tricky situation. It can mean nobody is able to make any of the important decisions outlined above on behalf of the person who has lost their mental capacity.

It can be difficult to move past this stage as well, because an LPA can only be created by the donor at a time when they have the capacity to do so. It can often be the case that once it’s realised that there is no LPA in place, it’s too late.

In these cases, the only solution is for the family to make an application to the Court of Protection, where they will apply to become what is known as a Deputy.

How do you become a Deputy?

If someone doesn’t have an LPA, you’ll need to apply to the court through the following steps to become a Deputy.

  1. Decide on a Deputy: Before you apply, it’s important for all the family to consider who will be the most appropriate person to make decisions for the donor by acting as Deputy. Most often, the person appointed will be a close family member who knows the person best. However, if a suitable Deputy cannot be determined, then a court can appoint a solicitor to act in a professional capacity.
  2. Application: Once a Deputy has been decided, the applicant will prepare the Court of Protection application forms, requesting that the court appoint them officially. At this stage, the applicant will also need to obtain a capacity assessment, carried out by a medical practitioner. This confirms that the person is no longer able to make their own decisions. While it is normal practice for such a capacity assessment to take place face to face, medical practitioners are using creative methods to get around this with the COVID-19 restrictions in place. Virtual assessments using online video tools such as Zoom and Skype are becoming the new norm.
  3. Notifying interested parties: After the court has issued the relevant paperwork, the next stage is for the applicant to inform any and all parties who may have an interest, giving any family members who may have concerns the ability to voice concerns or contest the application.
  4. Court decision: Assuming no objections are made, the Court will then consider the application and make the Order if it is deemed appropriate. The new Deputy will at this point have to pay a small fee for a Deputy Bond (similar to an insurance policy) to protect the incapacitated if the Deputy uses their funds dishonestly.

It’s important to note that the process of appointing a Deputy can be a lengthy one, taking anywhere between six and 18 months to finalise.

Differences between Lasting Power of Attorney and Deputyship

The main difference between an LPA and becoming a Deputy is that the former allows the appointed person to make decisions in the best interests of the donor straight away. If you are forced to apply for a Deputyship after a loved one has lost their mental capacity, it could mean there’s a stagnant period of up to a year and a half where you are not able to make decisions on their behalf.

In addition, a Deputyship requires the Deputy to keep detailed accounts and report all spending and decisions made to the Office of the Public Guardian on an annual basis. This is not required if acting as an attorney under an LPA.

Lastly, the cost of registering each LPA is currently £82, whereas the cost of a Deputyship application is £365. If instructing a Solicitor, the average cost of putting LPAs in place is significantly lower than assistance with a Deputyship application.

Should I put an LPA in place now?

The most common issues faced with LPAs is that many families don’t even consider putting one in place until they’ve been faced with the related difficulties first-hand.

An LPA is like an insurance document. You’ll pay a small premium to take one out and then put it in a drawer and forget about it. However, you also then have peace of mind that should you ever lose the capacity to make decisions, your affairs can be carefully looked after by the people you trust most.

If you would like to speak to one of our legal experts about Lasting Power of Attorney and/or Deputyship, please call 0808 231 6369 or request a call back via our contact form.

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