What happens if there is no Power of Attorney UK?

A Lasting Power of Attorney (LPA) is a document that gives someone authority to deal with a loved one’s affairs should they need help because of a loss of mental capacity. Ideally, everyone will put an LPA in place when making their Will so that their family will be able to help them in the future, should this ever be necessary. However, sometimes an individual may lose the ability to make decisions for themselves and not have an LPA ready to use. If this has happened to someone close to you, you are probably wondering, what happens if there is no Power of Attorney?

We look at how to handle the situation where no LPA exists, as well as the process for putting an LPA in place for those who are able to do so.

At Lockings Solicitors, our LPA team has wide experience of dealing with vulnerable clients and in helping families look after loved ones who have lost mental capacity. We know how difficult the situation is and you will find our LPA solicitors to be understanding and approachable.

What does a Lasting Power of Attorney do?

A Lasting Power of Attorney allows you to appoint someone to make decisions on your behalf should you ever be unable to do this yourself.

You can make two different types of LPA:

• A property and financial affairs LPA; and
• A health and welfare LPA

Your chosen attorney will be able to step in if necessary and access your bank account to pay your bills, look after your property and decide what care you will receive and what medical treatment you will have.

It is an important part of planning for the future and putting LPAs in place will give you and your family the peace of mind of knowing that your loved ones will be able to help and represent you, should this ever be needed.

What happens if there is no Power of Attorney UK?

If someone loses the ability to manage their own affairs but does not have an LPA in place to protect them, their family will not be able to make decisions on their behalf.

In the early stages of mental incapacity, someone may still have enough understanding of the effects of an LPA to sign one. However, there are strict criteria in place to safeguard individuals and if the patient does not have enough comprehension, then they will not be able to make an LPA.

If this happens, then their family will need to apply to the Court of Protection for a deputyship order. This is an order of the court formally appointing someone to act as the patient’s deputy in dealing with their affairs.

This type of order may give narrower authority than an LPA and the process is generally a little more complicated.

Applying for a deputyship order

You can be a deputy for someone’s property and financial affairs or for their health and welfare. The application for each requires different information to be included.

If you want to be a property and finance deputy, the court will need details of your own financial position as well as of the patient’s assets, income, outgoings and debts.

Before you apply for the deputyship order, you or your representative should tell the patient that you will be doing so. You should explain to them the implications of having a deputy and that it is because you believe they can no longer make their own decisions. They also need to know where they can obtain their own advice.

There are acknowledgement forms for them to complete if they have the ability to do this. You need to fill in a form confirming that you have correctly notified them of the situation.

If you want to be a health and welfare deputy, you will need to provide information about their wellbeing and give details of the professionals currently involved in looking after them. The court will want to know what decisions you want to make and you will only be authorised for those specific decisions.

There is an application form to fill in as well as an assessment of capacity form. The capacity form should be completed by a professional with expertise in assessing mental abilities.

In addition, you must provide the names of three people who know the individual you wish to represent. Each of them must be sent a notice telling them that you are applying to become a deputy. They have the opportunity to object to the application if they wish.

There is a supporting information form so that you can give details of your situation and the patient’s situation.

If you need help, we can put together a deputyship application on your behalf and work with you to complete the accompanying forms.

Court of Protection deputy duties

If you are appointed as a deputy by the Court of Protection, the deputyship order will set out details of exactly what decisions you are authorised to make for the patient.

For property and financial affairs deputies, there is usually a requirement to pay for a security bond. This is insurance to protect their assets and it will have an annual fee.

You can purchase official copies of the order to send to those who need to see it, such as banks or the patient’s care home.

You will need to keep detailed records of all of the transactions you enter into on behalf of the patient. Each year, you will need to complete an annual deputy report and pay a supervision fee to the Court of Protection. You may be visited to check that you are managing your role or to see whether you need any help.

Is it better to have a Lasting Power of Attorney or a deputyship order?

It is considered preferable to have an LPA in place, rather than having to ask the court for a deputyship order. An LPA allows the person to choose their attorney and specify exactly what they want to allow them to do.

Applying for an LPA is a quicker process and substantially cheaper. There is less ongoing supervision and an LPA can confer wider authority on the attorney, making it easier for them to help their relative.

If someone still has the ability to understand the implications of making an LPA, this is a good way for them to ensure that they will have the support they may need in the future. We can advise on capacity and discuss how to have this assessed if necessary.

Contact our East Yorkshire and York area deputyship solicitors

If you would like to talk to a solicitor about what happens if there is no Power of Attorney in place or you would like help making an LPA or applying for a deputyship order, we would be happy to help.