What happens if an individual loses mental capacity and does not have a Lasting Power of Attorney in place?

4 Aug 2017

If someone loses mental capacity and does not have a Lasting Power of Attorney, an application will need to be made to the Court of Protection to assign a deputy for the said person.  A deputy will be appointed to make decisions on behalf of someone who lacks mental capacity.

A deputy has a similar role to that of an attorney, however both the application process and ongoing responsibilities of a deputy are more costly and lengthy.

To apply to the Court of Protection for a Deputyship Order, firstly you must check that you meet the requirements to become a deputy; you must be over the age of 18, usually a close family member or friend and have the skills to make financial decisions on someone else’s behalf.

You need to go through the process of completing complicated applications forms and obtaining an assessment of capacity for the individual.  These forms are much more complex and time consuming than the process for applying for a Lasting Power of Attorney.

The application fee is £400.00, which must be paid twice if you are applying to become both a property and financial affairs deputy and a personal welfare deputy.  Should the Court decide your case needs a hearing, there will be an additional fee of £500.00.

If and when your application is accepted, there is an annual supervision fee which depends on the level of supervision the deputy requires.  For general supervision the cost is £320.00 but this can increase substantially depending upon the circumstances.  If you are a new deputy there is an additional assessment fee of £100.00.  If you become a property and affairs deputy, you must also pay a security bond, acting as insurance for the person you are acting as a deputy for.

Once you are appointed as a deputy, the work involved only increases.  As a deputy, you must file an annual report to the Court detailing the reasons for any decisions which you made on behalf of the person and why these were in their best interest.  Furthermore it must include all the finances of the person you are deputy for.  If the Court questions your activities, your supervision may be increased or they may replace you with a different deputy.  Further costs are also applicable at this stage.

Clearly applying for a Deputyship Order is costly, complicated and an extremely lengthy process.  Our advice would always be to try and avoid this path if possible by registering a Lasting Power of Attorney prior to losing mental capacity.  Not only is this process more cost effective and quicker, it is less stressful on friends or family members who need to apply.  Your interests are likely be better taken care of with a Lasting Power of Attorney in place.

However if the window for applying for a Lasting Power of Attorney is no longer available and you need to apply for a Deputyship Order then our team of lawyers can provide you with the expert advise you will require.

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