Deputyships: What happens if you lose capacity and do not have a lasting power of attorney in place?

• Posted onMay 18, 2020

A Lasting Power of Attorney (LPA) allows you to plan ahead for if you lose the ability to make your own decisions or require assistance in making decisions. But what if you do not have an LPA in place?

Janine Guthrie, Chartered Legal Executive in WSP Solicitors’ Private Client Department discusses Deputyships and what happens if you lose capacity and do not have an appointed attorney.

What is the difference between an attorney and a deputy?

An attorney is someone you appoint under a Lasting of Attorney. This can be for your property and financial affairs and your health and welfare issues. A Lasting Power of Attorney can only be made when you have mental capacity. A deputy is appointed by the Court of Protection to manage your property and financial affairs and/or health and welfare (also called personal welfare) where you have not made a Lasting Power of Attorney and have lost mental capacity to do so.

When does someone lose mental capacity?

This can happen in different ways. Most commonly this occurs when an older person is suffering from one of the various forms of dementia and they no longer have mental capacity to make decisions in relation to their financial matters or personal welfare. It can also happen in younger people where they have acquired brain injuries or have severe learning disabilities from birth that prevent them from making decisions for themselves.

Who decides if someone lacks capacity?

Essentially it is the Court who decides. However, initially an opinion will be sought from a GP or other suitably qualified person.

What does a deputy do?

A Property and Affairs Deputy looks after an incapacitated person’s financial affairs. This will include paying bills and managing your bank accounts. A Personal Welfare Deputy makes decisions such as where the incapacitated person should live and dealing with their medical treatment.

How should a deputy make decisions?

A Deputy should make decisions at all times in the best interests of the incapacitated person. A Deputy should always act honestly and with integrity and not allow any personal interests to conflict with their role as Deputy.

How long does it take for a deputy to be appointed?

This varies. For a financial deputy, it usually takes approximately 6 months from the point the application is submitted to the Court. For a personal welfare deputy, it usually takes approximately 3-6 months from the point the application is submitted to the Court provided that there are no objections.

How long do Deputyships last?

The appointment lasts until further Order from the Court. You can apply to vary the Order if necessary.

What is the procedure to appoint a Deputy?

Medical evidence of lack of capacity is the most essential part. Without this, the Court will not consider the application. This is done via the Court’s prescribed form and is usually completed by the person’s GP or a psychiatrist. There are then other forms to complete including a supporting financial information form for the financial application or a supporting personal welfare form for the personal welfare application. In total there are four different forms to complete which must then be sent to the Court of Protection along with the court fee.

Is there anything else a Deputy needs to be aware of?

Yes. An annual report must be submitted to the Court detailing what decisions and costs have been incurred and made during the year. It is recommended to keep accounts and notes of all decisions made throughout the year. The Court also charges a supervision fee and a deputy bond. The Deputy may also be visited by a representative of the court who will want to check their paperwork and discuss how things are going.

Who pays for the application and ongoing costs?

All fees are payable from the assets of the person who lacks capacity. The Court fees, deputy bond fee and GP fee will have to be paid by the proposed Deputy from their own assets. These together with any other any costs incurred in making the application can be reimbursed from the person’s assets once the order has been made.

How can WSP Solicitors help?

We can assist in making both property and financial and personal welfare deputyships as well as making applications to the Court for “one off” orders. These would include matters such as selling property or obtaining authority to make a gift. We can also advise in relation to the completion of the annual reports and if you have made an application for a personal welfare deputy and it has been challenged.

For more information on our services please visit our Private Client web pages here. You can contact Janine directly here or by filling out the form in the sidebar of this page. Alternatively, you can call us on 01453847200.