No Lasting Power of Attorney? – What happens next?

Taking care of someone who has lost capacity can be an emotionally difficult and stressful time  but going through this without the safety of a Power of Attorney is bound to be more trying.

Many people think that if something were to happen in the future and they were to lose mental capacity then their loved ones would automatically take over decisions about finances, property and health and wellbeing. Unfortunately this is not the case and can mean an application must be made to the Court of Protection.

What happens if I lose capacity with no Power of Attorney in place?

It is always a good idea for you to plan ahead and make your Powers of Attorney while you are able. IF you lose metal capacity a Power of Attorney cannot me made. No one can make a Power of Attorney for you, no one can appoint themselves as your attorney and no one can make a decision for you without assistance from the Court of Protection.

Just like when you make a Will to ensure your wishes are carried out on your death, making a Lasting Power of Attorney means your wishes can be followed whilst you are living but don’t have mental capacity.  If a Lasting Power of Attorney isn’t made access to your finances and health and welfare will need to be determined y the Court of Protection and a Deputy will be appointed.

What is a Deputy?

According to ‘AGE UK’ a Deputy is ‘a similar role to that of attorney. They must follow the same principles as an attorney to make sure decisions are made in your best interests’. Anyone over the age of 18 can apply to the court to become your Deputy.

An application to the Court for Deputyship can be an expensive and long process and the power of a Deputy are limited. Moreover if an application has to be made to the Court then:-

• You cannot choose who will deal with your affairs or who will be your Deputy
• You cannot specify the power you want to grant to the Deputy
• You cannot specify any restrictions on the Deputy; the court may
• The application for the Deputy may be refused
• No joint assets can be sold without the appointment of a Deputy i.e. your home
• Your loved ones may have to pay to maintain the Deputyship

Powers of Attorney can only be made by the person giving the power (the Donor) and if capacity is already lost this consent is not valid. Whilst we advise that Lasting Powers of Attorney are made as soon as possible the decision is ultimately yours.

If you are experiencing any of the issues raised by this blog or need advice on Lasting Powers of Attorney or Court of Protection matters please contact our team on 0800 015 0340 to arrange an initial free half hour appointment at any of our offices in Huddersfield, Halifax, Wakefield, Horbury, Leeds, Pudsey or Morley.