What happens if you don’t have Power of Attorney?

If someone loses mental capacity and is no longer able to manage their affairs, a Lasting Power of Attorney (LPA) will give a trusted relative or other individual the authority to do this on their behalf. However, an LPA must be made in advance while the individual still has the ability to understand the implications of signing. We take a look at what happens if you don’t have Power of Attorney.

At Lockings Solicitors, we have particular expertise in helping clients with LPAs. We also assist families who are experiencing difficulties because a loved one has lost mental capacity but does not have an LPA in place. Our solicitors know how hard this situation is, and you will find us sympathetic and understanding.

Our Associate Director and Head of Private Client, Joanne Liversidge, has many years of experience in dealing with LPAs and helping vulnerable clients. She is a member of Solicitors for the Elderly as well as being a Dementia Friend.

Joanne has a strong team that handles a full range of LPA issues, from providing advice and drafting LPAs to guiding and supporting attorneys once an LPA is in use.

Why is a Lasting Power of Attorney important?

An LPA allows a family member or close friend to represent someone should that person no longer have the mental capacity to make their own decisions. The person who makes the LPA appointing an attorney to help them is referred to as the donor.

There are two main types of LPA:

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

Business owners can also consider making a separate LPA for their business interests.

A property and financial affairs LPA allows the attorney to deal with matters such as:

• Paying bills
• Maintaining the donor’s home
• Receiving benefits
• Making investments
• Selling the donor’s property, if this becomes necessary

A health and welfare LPA provides authority for the following types of decision:

• What care will be provided
• Where the donor will live
• The donor’s day to day routine
• Who the donor will spend time with
• What medical treatment the donor will receive and what treatment will be declined on their behalf

An LPA can be tailored to give your attorney the authority you want them to have. You can also choose more than one attorney if you want, as well as different attorneys for each type of LPA.

What happens if you don’t have Power of Attorney?

Putting an LPA in place is a recommended way of planning for the future. One or more LPAs can be made while an individual has the mental capacity to do so and the documents kept in case they are ever needed.

If someone does not have an LPA, they cannot make one if they have lost the mental ability to understand the implications. In some cases, they may still have enough understanding to sign if they are in the early stages of decline. It is essential that they have expert advice and representation in this case to ensure that their capacity is assessed as adequate by a professional. This will help to protect the attorney’s position.

If the individual cannot make an LPA because they no longer have sufficient mental capacity, then a family member may need to obtain a deputyship order.

What is a deputyship order?

A deputyship order is made by the Court of Protection. It appoints someone to be a deputy for a patient who is no longer able to make their own decisions.

The person applying to be a deputy will normally be a close relative of the patient. Two people can apply and share the role.

As with LPAs, you can request either a property or financial affairs deputyship order or a health and welfare deputyship order.

How to apply for a deputyship order

To obtain a deputyship order, the person who wants to be the deputy must apply to the Court of Protection.

The application form needs to be accompanied by a range of other forms and information.

Applying for a property and financial affairs deputyship order

A property and financial affairs deputyship application will need to include details of the patient’s finances, including their assets, income, debts and outgoings.

The deputy will need to include details of their own financial circumstances as well.

A formal assessment of the patient’s mental abilities will need to be carried out and an assessment of capacity form completed.

The proposed deputy should visit the patient and let them know that they are applying to be a deputy and what this means. They need to explain that a deputy is being appointed because it is believed that the patient can no longer make their own decisions. The patient should be given information about where to obtain independent advice.

If they are able, the patient should sign the Court of Protection acknowledgement form confirming that they have been notified of the application. There is a separate form to fill in if they wish to object.

Three people who know the patient must also be notified of the proposed application. They must be given a formal notice advising them that the application is being made, along with an acknowledgement form. They will have the opportunity to object to the application if they have concerns.

Applying for a health and welfare deputyship order

It is less common to need a health and welfare deputyship order and the authority provided will usually be limited to a single issue, such as deciding where someone will live or what medical treatment they will receive.

Supporting information must be sent with the application. This needs to include details of the local social services and NHS authority as well as a list of the patient’s most frequent visitors.

Again, three individuals who know the patient must be notified of the proposed application and the patient themselves advised.

With either type of application, the court may decide to hold a hearing before deciding whether to make a deputyship order. The patient must be advised of this hearing and given the opportunity to attend. They must also be told that they can contact the Court of Protection if they need advice or help.

Being appointed as a deputy

If you are appointed as a deputy for someone’s property and financial affairs, you will usually need to put a security bond in place before you can start to act for them. This is an insurance policy that protects their assets and a premium will be payable each year. The cost will depend on the value of the assets.

Deputies are required to keep records of all transactions and the decisions they make for the patient. Annual accounts or an annual report need to be submitted to the Court of Protection each year, together with a supervision fee.

The deputyship order will set out the extent of your authority. If you need to do something not covered by the order or sell a jointly owned property, you will need to apply for a separate order authorising this.

You can purchase extra copies of the order and send these to organisations who need to see them, such as banks or a care home. Banks and other institutions will also want to verify your identity.

The Office of the Public Guardian will supervise your deputyship. They may decide to visit and can check to see how the arrangement is working. They are also able to offer advice and guidance.

Lasting Power of Attorney or deputyship order?

It is usually preferable to have a Lasting Power of Attorney in place rather than having to apply for a deputyship order. It is quicker and easier to set up an LPA, as well as being more cost-effective. A main advantage of an LPA is knowing that it is what the individual chose for themselves and that they understood the process and wanted help from their chosen attorney.

A deputyship order can be narrower in authority and is also subject to more ongoing supervision. It can also take several months to arrange, meaning it will not be immediately available, which may cause some difficulties in the short-term.

Contact our East Yorkshire and York area Lasting Power of Attorney solicitors

If you need to help someone who does not have a Power of Attorney, our experienced LPA solicitors can provide advice and representation. We know that this is likely to be a difficult time for you and we will do all we can to help.