What if I DON'T make a power of attorney?

If there comes a time when you don’t have the mental capacity to make a particular decision, and you haven’t created a lasting power of attorney (LPA), it is likely that your relatives will need to apply to the Court of Protection to appoint a deputy.

At that point, the Court of Protection can:

  • decide if you have the mental capacity to make a decision
  • make an order relating to your personal welfare or property and financial affairs
  • appoint a deputy to make decisions on your behalf

This is a similar role to that of attorney if an LPA has been created. The court will consider whether it is necessary for ongoing decisions to be made on your behalf, and whether that person is suitable to be appointed to that role. The court usually does everything by post, rather than holding a hearing.

What does a deputy do?

Becoming a deputy involves a lot of responsibility. The deputy has similar responsibilities to an attorney. They must always take steps to allow you to make your own decisions where possible and ensure any decisions they do make are in your best interests.

The court order will set out the extent of the deputy’s authority to act, so they must always make sure they’re not exceeding their powers. A deputy also has a duty to act in good faith and not to take advantage of their position for their own benefit.

Heather Varley, an Associate in our Wills & Tax Team has vast experience in drafting LPA’s and also in making applications to the Court of Protection. She is often asked what are the advantages of making an LPA, if a deputy has very similar powers to an attorney in the same circumstances.

Heather says “The person that applies to be your deputy through the Court of Protection, may not be who you would have chosen. The process of appointing a deputy can be lengthy and costly and needs to be dealt with right at the time when you might be in need of care or bills need paying, which puts an additional strain on those looking after you. It’s much better to put an LPA in place while you are of sound mind.”

Our Wills & Tax Team, based in Christchurch, also cover Bournemouth, Poole and the New Forest. If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 and Heather or her team, will be happy to chat about your situation and you particular requirements.