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In an earlier article, we discussed Lasting Powers of Attorney (LPA) by which an individual can appoint people (attorneys) to manage their finances and/or their health and wellbeing should they lose the capacity to do so. But what happens if you lose capacity without an LPA in place?
The starting point is that nobody has the authority to make decisions on your behalf unless they have been appointed by you as an attorney in an LPA. Therefore, if you have not made an LPA and lose capacity, nobody is able to step in immediately and act on your behalf. This means that even more straightforward matters such as paying bills and care fees may not happen.
At this point, it may be necessary for one or more people to make a deputyship application to the Court of Protection.
What is the Court of Protection?
The Court of Protection was created by the Mental Capacity Act 2005. It makes decisions on financial or welfare matters on behalf of people who lack the mental capacity to make those decisions themselves. Day-to-day decisions are delegated to one or more people known as ‘deputies’.
Anyone can make an application for deputyship; deputies are often family members, friends, solicitors or the local authority.
What is the role of a deputy?
The role of a deputy is fairly similar to the role of an attorney. It is the deputy’s responsibility to manage the finances of the incapacitated person and their duty is to always act in that person’s best interests.
The amount of work involved for the deputy will depend upon the number and type of assets involved. Generally, a deputy will need to control the bank accounts, pay bills and care fees, claim benefits and sometimes sell property. As the deputy is appointed by the court, the role is more onerous than that of an attorney. It is necessary to submit an annual report to the Office of the Public Guardian covering all spending and analysing the extent of the deputy’s involvement in the person’s life and care.
Further, a deputy may well be visited by a member of the Court of Protection to check that they understand their duties and are carrying them out properly.
How is a Court of Protection deputy appointed?
The application process for a deputyship order is not straightforward and can take anywhere between six months to a year to complete. There are a number of application forms that must be filed, including a capacity assessment. It is essential that the application forms are completed correctly; any errors will cause delay in what is already a lengthy process.
In the past, GPs have generally been happy to complete the capacity assessment. However, even before the pandemic, GPs were becoming increasingly reluctant to take on this work. It may therefore be necessary to instruct a specialist to undertake the assessment.
Once the application has been issued, there are a number of people who must be notified of the process and given an opportunity to object before the deputyship order can be made. The court will make the order if it is satisfied that it is in the best interests of the person who has lost capacity.
LPA Health and Welfare Decisions
As with Lasting Powers of Attorney, there is a distinction between a deputyship for property and financial affairs and a deputyship for health and welfare decisions. The Court is much more reluctant to appoint deputies for health and welfare decisions. This is because they take the view that medical professionals are able to make decisions that are in someone’s best interests. A deputy is unlikely to be appointed unless the situation is complex or there is disagreement over the best course of action. Accordingly, should health and welfare decisions be important to you then you are strongly advised to make an LPA.
Deputy versus Attorney
Taking all of the above into consideration, you will see that it is a lot more straightforward (and considerably cheaper!) to make a LPA appointing one or more attorneys than to leave it until you have lost capacity and a deputyship application becomes necessary. Also, being an attorney is less onerous in terms of administration than being a deputy and there is no delay in seeking appointment.
Another consideration is that appointments and decisions that you make before losing capacity are more likely to better reflect your wishes after you lose capacity.