We would always recommend legally appointing a Lasting Power of Attorney to ensure there is someone who can act on your behalf before you or your loved one loses capacity.
However, if a person lacks mental capacity through illness or injury (including but not limited to dementia, stroke, cancer, road traffic accident, coma, severe mental health problems, brain injury or alcohol and drug misuse) but did not appoint a Lasting Power of Attorney (LPA) there may come a time when no one can legally make decisions on their behalf. Paying bills, undertaking day to day banking, selling a property or making decisions about future medical care will become very difficult.
Deputyship
In this situation, family or friends must obtain a Deputyship through the Court of Protection if they wish to be involved in decisions surrounding their relative’s ongoing care. A Deputyship works in the same way as a LPA, and authorises a person to make decisions for Health and Welfare and/or Property and Finance on behalf of their incapacitated relative. The Court of Protection will decide if it is necessary for ongoing decisions to be made on an individual’s behalf, and whether the nominated person is suitable to be appointed to that role. They will also ascertain that there are no objections to the Deputy’s appointment.
We recommend arranging a LPA while your relative still has mental capacity. The Court of Protection route is always more expensive, time-consuming and inconvenient. In particular, it requires a detailed examination and background check of the person nominated to act as a Deputy and is far more specific in the permissions it provides.
A Deputy must also fulfil a number of ongoing legal obligations including the payment of an annual fee and the submission of an annual report to the Court of Protection, which is not required under the LPA option. Further, the Court of Protection is exceptionally reluctant to provide a Health and Welfare Deputyship which can cause issues when attempting to secure the medical records needed to make an NHS Continuing Healthcare funding application.
Learn more: I am next of kin, why should an LPA be in place?
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