Last updated on November 10th, 2022 at 10:25 am
Looking after someone who has lost their mental capacity is hard enough, but if you are doing it without the benefit of a power of attorney, you are bound to find it even more difficult, as you don’t have the legal authority to deal with their affairs properly.
Many people think that if something happens to them in the future and they can’t make their own decisions about issues such as finances, property, healthcare or personal care, for example, their family or friends can simply take over. It isn’t true. Just as you need to make a will to determine what will happen to your assets when you die, you need to put a lasting power of attorney (LPA) in place if you want to make the decision yourself as to what will happen to you if you lose mental capacity. There are two types of power of attorney to deal with different aspects of your life – ‘property and affairs‘ and ‘personal welfare‘
What happens if nobody has power of attorney over my affairs, and I lose mental capacity?
If you think you will one day be mentally incapacitated, it’s a good idea to grant a lasting power of attorney to someone you trust, so they can act on your behalf when you’re no longer able to make decisions at the time they need to be made.
This can be especially important if you hold joint assets as the assets may not be able to be sold without the consent of the Court of Protection which could lead to considerable financial hardship for them and you, until their deputyship is processed and granted by the Court of Protection.
If you lose your mental capacity at the time a decision needs to be made, and you haven’t granted powers of attorney to anyone (or you did appoint attorneys, but they can no longer act for you), then the court can appoint someone to be your deputy. Anyone over 18 can apply to become your deputy, providing nobody objects to their application, and they have the necessary financial skills if they’ve applied to be a ‘property and financial affairs’ deputy.
If there’s a one-off decision to be made that you’re incapable of making, a deputy can apply to the Court of Protection for a one-off order to make it for you.
It’s important to note that a deputy’s powers are very limited compared to someone who has been appointed with powers of attorney, and there is an annual fee (up to £2,500) for them to renew their deputyship.
The person I’m caring for has lost their mental capacity, but there is no lasting power of attorney in place. Can I get power of attorney after they have lost their mental capacity?
First of all, you should check that they haven’t already appointed an attorney that you’re not aware of. You can do this here. If they have, you should contact that person to let them know about the situation.
If they haven’t already appointed an attorney, you can’t gain power of attorney – because an attorney has to be appointed by the donor (the person granting the LPA) at a time when they have mental capacity. However, you can apply to the Court of Protection to become their deputy in order to make decisions on their behalf.
Can I get power of attorney without consent of the donor?
No! This is similar to the situation of someone having lost their mental capacity. If someone is lacking in mental capacity, they can’t make a valid decision to appoint you as attorney. In this case, you’ll have to apply to the court to be appointed as their deputy.
What if a deputy’s application is refused?
Occasionally the Court of Protection may reject someone’s application to become a deputy for someone who’s lost their mental capacity. In this case, it will appoint the local authority (which usually means the donor’s local council) to make those decisions instead – including where they will live and what healthcare they may receive. This can be especially traumatic for the family of the donor – which is exactly why making a lasting power of attorney is so important.
The consequences of not having a lasting power of attorney
Let’s look at exactly what can go wrong when there is no lasting power of attorney in place:
- You have no say in who the court appoints as your deputy
- You have no say in the scope of power granted to your deputy
- A deputy’s application could be refused, so the council may be appointed instead
- Your family will have to pay extra to apply for and maintain a deputyship
- You may not be able to sell jointly held assets until the court appoints a deputy
What about power of attorney when someone dies?
You cannot apply for power of attorney after someone’s death – instead, the instructions of the will take precedence.
If the donor had appointed someone with a lasting power of attorney, then these powers of attorney come to an end upon the donor’s death, and the attorney can no longer make decisions about the donor’s finances, property or other issues. That means, even if an attorney was granted the power to sell or give away property and assets, they cannot continue to do so once the donor has died.
Instead, the wishes set out in the will of the donor will come into effect and the estate will be distributed according to the will, by the executor named in the will. If the donor dies without a will, then the estate will be divided according to the rules of intestacy, by an administrator.
A person with power of attorney doesn’t automatically deal with the will unless they are also named in the will as an executor. However, if there is no will, then the attorney can apply to become an administrator of the estate, if they are the next of kin such as a spouse, child or relative of the deceased (but not usually an unmarried partner).