When a family member or close friend loses mental capacity, it can be an overwhelming and emotionally charged time. Imagine the difficulty of making crucial financial, health, and welfare decisions for someone you care deeply about, only to discover that they did not have a Lasting Power of Attorney (LPA) in place. An LPA is a legal document that allows someone to choose one or more trusted people to make decisions on their behalf, should they lose the ability to do so. If this essential planning step was missed, it can add further complexity to an already challenging situation.
This guide aims to explain in detail the steps you need to take if you find yourself in this position. The focus is on understanding the legal framework as well as practical pathways for safeguarding the well-being of your loved one.
Before any action is taken, it’s critical to verify that your loved one has indeed lost mental capacity. This is because decisions about the person’s care, finances, and other aspects of their life will now need to be taken with their best interests in mind—whether or not they agree with these decisions.
Mental capacity is defined by the Mental Capacity Act 2005 as the ability to make a specific decision at the time it needs to be made. Just because someone has been diagnosed with a mental illness or dementia does not necessarily mean they lack capacity. Capacity can also depend on the nature or complexity of the particular decision needing to be made.
The assessment of mental capacity is often carried out by professional medical personnel such as a GP, psychiatrist, or a social worker. If there is any doubt, it’s important to seek professional advice as soon as possible, as comments from others may not always be accurate or trustworthy.
When a person has not granted a Lasting Power of Attorney and subsequently loses capacity, things can become significantly more difficult and time-consuming for their family. Decisions about their finances, health, or welfare situations will not be able to be easily managed under a legal framework, and in most cases, you will need authority from the Court of Protection to act on that person’s behalf.
Without an LPA, even close family members have no automatic legal right to make decisions concerning issues such as moving into a care home, managing bank accounts, or selling property to pay for care. Simply being a spouse, partner, or child of the person is not enough to grant you any legal authority over their affairs. This lack of authority can lead to significant delays in providing necessary care or settling financial matters.
In the absence of a Lasting Power of Attorney, your most important next step is to apply for a ‘Deputyship’ through the Court of Protection. A deputy is authorised by the court to make decisions on behalf of someone who lacks the ability to do so.
There are two types of Deputyships, similar to the LPA categories:
1. Property and financial affairs deputy: This person is responsible for managing monetary matters. This could include paying bills, managing benefits and pensions, making investments, and selling property.
2. Personal welfare deputy: This person makes decisions related to health and personal care. These decisions may include where the person lives, what type of medical treatment they should receive, and their day-to-day care needs.
It’s possible to apply to be one or both types of deputy, depending on what decisions your loved one lacks the capacity to make. More than one person can also be appointed as a deputy.
The process to become a deputy can take time, usually somewhere between four to six months, and involves several steps:
– Filling in forms: You’ll need to fill out a number of forms, such as an application requesting the Court of Protection to appoint you as a deputy. These include a Deputy’s Declaration in which you will give details such as your relationship to the person, why you are applying, and what decisions you believe you need to make on their behalf.
– Medical Evidence: You must submit a form completed by a healthcare professional that confirms the person’s incapacity to make decisions.
– Notification Requirements: You are legally required to inform certain people (such as close family members) about your intention to apply for deputyship. This transparency ensures that any relevant person has the chance to object if they believe you should not be appointed.
– Court Fee: The application requires a fee currently set at £365 for each type of decision-making you are seeking (i.e., finance or welfare). Depending on your financial status, you might be able to seek assistance for this expense.
Once you’ve submitted your completed forms, the Court of Protection evaluates your application. If approved, the court may ask you to meet certain conditions. For example, they might ask you to put safeguards in place to ensure you act in the best interests of the person under your care. A security bond may be required to protect the individual’s assets in cases where significant financial responsibilities are involved.
If appointed as a deputy, you have significant legal responsibilities. All decisions you make must be in the individual’s best interests and in accordance with the principles of the Mental Capacity Act.
It’s vital to keep detailed records of the decisions you make, as the Office of the Public Guardian (OPG) may require annual reports on your actions. You will be independently monitored to ensure you are fulfilling your duties appropriately.
Working on complex paperwork, managing accounts, and ensuring all actions meet the standards set by the law can seem overwhelming, but there is available help. Most deputies eventually consider legal advice to ensure all these steps are managed correctly.
Some local councils have legal authority to intervene if they feel an individual lacks the capacity to manage their affairs and no one else is handling these matters. This option exists if family members are either unable or unwilling to apply to be a deputy, or the person’s affairs require more oversight.
Local authorities usually have a team within Adult Social Care that can assess the individual’s capacity, ensure their well-being, and seek a court deputyship if necessary. However, it’s essential to know that a local authority’s resources are stretched, so your loved one may not receive the personal oversight that a family member or friend could offer.
Additionally, if they assume control of financial or personal care matters, you will lose any ability to intervene on major decisions unless granted specific powers by the court.
Unfortunately, disputes may arise among family members, especially when it comes to major decisions such as selling family property, handling funds, or choosing long-term care options. If someone contests the Deputyship, or if there are competing deputies (e.g., family members disagree on who should be in control) the case may have to go to a full hearing by the Court of Protection.
In some cases, the court might appoint an independent, professional deputy, often a solicitor, to manage the person’s affairs in situations where family disputes are severe. Though this may seem like a solution, professional deputies often come with high administrative costs, which will likely be taken from the funds of the person they represent.
With no LPA in place, one of the immediate practical considerations involves how to pay for care. Care homes and other social care providers will still require payment, and they may be hesitant to admit a patient if no one has the authority to make financial decisions on their behalf.
In this scenario, it’s a good idea to seek advice from a financial specialist experienced in elder care to explore potential options such as seeking short-term payment solutions.
If you are waiting for Deputyship approval and there is an urgent need for money, you may be able to arrange with the care provider that payment will be settled once your court approval is secured.
Given the complexity and potential delays involved in applying for Deputyship, it is crucial that you act promptly once you recognise that your loved one cannot make decisions for themselves. Acting without legal authority could leave you open to legal repercussions, and the lives of those whom you’re trying to care for may suffer unduly from delays in decision-making.
Establishing a good support network including legal advisors, medical professionals, and financial consultants can help you navigate these waters more effectively.
Once appointed as a deputy, this role comes with long-term responsibilities beyond routine decision-making. You should continue to monitor your loved one’s condition, emotional needs, and overall well-being. If you notice any changes in their condition that would necessitate increased care or amendments to decisions made previously, the Court of Protection must approve those changes.
Finally, it’s a good time to reflect on your own personal planning — ensuring that you make provisions for any future incapacity for yourself. The emotional and legal toll is reduced significantly when LPAs are in place, so encourage your family and loved ones to prepare while they still have the capacity.
While the absence of an LPA can lead to challenging legal obstacles, the process of becoming a deputy allows you to exert control and compassion on your loved one’s behalf. With proper guidance and determination, you can navigate the complex legal landscape while honouring the best interests of those who can no longer decide for themselves.
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