What if there is no lasting power of attorney in place?

You may find yourself in a situation when the person you are caring for has lost their mental capacity, but has not set up either a property and financial affairs power of attorney, or a health and welfare power of attorney.

In these circumstances, it will not be possible for family members or friends to use a lasting power of attorney to manage that person’s financial affairs or to make decisions about their health and welfare. 

However, it is possible to apply to the Court of Protection for a Deputyship Order. You can also apply for a one-off decision on a particular matter.

The Court of Protection makes decisions on financial and personal welfare matters for people who lack the mental capacity to make those decisions themselves. 

It rules on:

• disputes about lasting powers of attorney
• mental capacity assessments
• deprivation of liberties decisions
• best interest decisions 

In cases when there is no lasting power of attorney in place, the Court can appoint deputies.

Deputies are appointed by the Court of Protection. They can make decisions for someone who lacks the capacity to make decisions themselves.

The Court can appoint more than one person as a deputy. 

There are two types of deputy:

• Property and financial affairs deputy
• Personal welfare deputy

The Court does not always appoint personal welfare deputies.

Deputyship gives a long-term ability to support someone and this may not be necessary.

As an alternative to appointing a deputy, the Court can make a one-off decision about a particular issue.

Fees for Court of Protection applications are higher than lasting power of attorney fees. There is also an annual supervision fee for a Deputyship. These fees can be reduced if the person without mental capacity has low income and savings.