If you have no LPA UK, then if others consider you have lost the ability to make decisions, the Court of Protection will have to appoint a DEPUTY to manage your affairs (even if you are married.) The only way to prevent this is to have both types of Lasting Power of Attorney in place – Health and Welfare and Finance. Then you have made your choice, rather than delegating it to a Judge. (Ring 01323 384003 to get started!)
No Lasting Power of Attorney? You will get a Court of Protection Deputy?
If there is no one legally appointed to manage a person’s affairs under a Lasting Power of Attorney or old style Enduring Power of Attorney and they lose the ability to do so themselves, then not much can be done until someone has successfully applied to the Court of Protection to be appointed as that person’s deputy. If there is a husband or wife or civil partner, they will normally apply, but it could be the Local Council or another official body or a local solicitor who applies. If there is a dispute over who should be appointed, the lawyer’s fees are ALL paid by the incapacitated person!!! Would you want that?
When the Court of Protection makes an appointment as Deputy they may attach conditions to it, and the deputy will be expected to buy insurance every year to ensure that any money or property they steal is repaid by the insurance company.
Role and duties of a Court of Protection Deputy
The Deputy order from the Court of Protection will set out the extent of your powers. It can apply to any area or all areas in which the person could have acted or made decisions for themselves if they had the ability.
Your powers might relate to:
- Personal welfare, such as giving or withholding consent to medical treatment and/or social care interventions. In point of fact, most applications for Welfare Deputyships are turned down, and the Court of Protection judge will make individual decisions as needed, at a substantial cost to the incapacitated person.
The Powers the deputy is given will depend on what the Court of Protection considers the needs of the person the deputy has been appointed to look after.
When acting as Deputy the decisions made can have a major impact on the person who lacks capacity. In order to carry out the responsibilities sensitively, responsibly and rigorously the deputy should always:
- only make decisions you the deputy is authorised to make by the order of the Court.
- adhere to the Mental Capacity Act 2005’s five statutory principles.
- make decisions only in the person’s best interests.
- fulfil the deputy’s duty to apply certain standards of care and skill (duty of care) when making decisions. And
- have regard to all relevant guidance in the Code.
Clearly, where a Local Authority, solicitor or other professional is appointed they will be entitled to be paid for the time they spend. This may be considered as they are required to review all decisions with the incapacitated person if at all possible. It is not at all unlikely that the costs could exceed £10,000 a year plus VAT – that might cover 1 hour a week of a solicitors time.
So with around a 60% chance that anyone will lose the ability to make their own decisions at some stage in their life – car accident, raised paving stone, severe illness, mental health problems alone strike 1 in 7, and the one everyone fears – Alzheimer’s. So the choice is yours, take the risk of the (wrong?) Deputy being appointed or get organised with both types of Lasting Power of Attorney. Not much of a choice really – LPA or Deputy!
No Lasting Power of Attorney? Get sorted!
Who can become a deputy?
A deputy is usually a close friend or family member of the person who needs help making decisions. A deputy can also be a professional, such as an accountant or a solicitor. Any deputy must be over the age of 18.
The Court of Protection will decide who can be a deputy.
How you can become a deputy?
You must apply to or be appointed by the Court of Protection to become someone’s deputy. You can put up a case to be appointed as:
- a deputy for property and financial affairs. And/ or as
- a deputy for personal welfare – though this is less often allowed.
The court will send you an order – a legal document that details a decision they have made – appointing you as a deputy. Your order will explain what decisions you are legally allowed to make for someone else.
Your powers will be decided by the Court of Protection based on the other person’s needs and could include making decisions about money and healthcare.
You can read more about the Court of Protection and how they work with deputies by using the link below.
So if you don’t make both types of lasting power of attorney, you and your family could be in for a great deal of extra cost and grief as you go through the process of attempting to be appointed as a deputy, yet another reason why having no Lasting Power of Attorney is an inconvenience.
Your responsibilities as a deputy
The decisions you make as a deputy can have a big impact on the other person’s life. As a deputy, you should:
- Only make decisions in the person’s best interests.
- Only make the decisions the court says you can make.
- Apply a high standard of care when making decisions.
There are more details about the guidance for deputies in the Mental Capacity Act 2005 Code of Practice.
- Understanding the Mental Capacity Act
Making decisions for someone else – no lasting power of attorney?
The decisions you can make as a deputy will be decided by the court. If a decision you want to make is not included in the order you can apply to the court. The court can either:
- change your powers so that you can make the decision
- make the particular decision instead of you doing so
Before you make a decision for someone else, you should consider if that person might be able to made the decision on their own. You can read more information about how to decide if a person lacks the mental capacity to make a decision.
When not to make decisions
As a deputy you are not able to make a decision for someone in certain circumstances. These include:
- when you believe the person can make the decision themselves
- when it will physically restrain the person, unless it is needed to prevent them coming to harm
- when it goes against a decision made by an attorney acting under a Lasting Power of Attorney
- when you want to stop life-sustaining, for example turning off a life-support machine
What you cannot do as a deputy
As a deputy you will not be able to make certain decisions. These include:
- making a will or any addition to a will on behalf of the person
- making large gifts out of the person’s money
- holding any money or property on behalf of the person
The Office of the Public Guardian can investigate you if they believe they are not fulfilling your duties properly. If you make decisions as a deputy that you are not allowed to make, you might be removed from your position.
Our FREE 2 minute guide to Legal Planning is available on request or we have a more detailed guide on Lasting Powers of Attorney.
What happens if there is no Lasting Power of Attorney UK. Now you know!